Citation Nr: 21070260
Decision Date: 11/23/21	Archive Date: 11/23/21

DOCKET NO. 14-10 606
DATE: November 23, 2021

ORDER

For the period on appeal, a rating of 40 percent, but no higher, for a lumbar disability is granted.

FINDING OF FACT

For the period on appeal, the competent and probative evidence shows the Veteran's lumbar forward flexion was limited to less than 30 degrees. 

CONCLUSION OF LAW

During the period on appeal, the criteria for a rating of 40 percent, but no higher, for a lumbar disability are met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service in the United States Air Force from July 2000 to August 2000, October 2000 to January 2001, and from September 2001 to September 2002. He also served in the Army Reserves. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  

The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing in August 2014 and a virtual Board hearing in March 2021; transcripts are  of record. 

In a June 2019 order, the Court approved a Joint Motion for Remand (JMR) that vacated a September 2018 Board decision which denied a rating in excess of 

20 percent for the Veteran's lumbar disability. The JMR remanded the issue for further actions in accordance with its decision. The Board remanded this claim for compliance with the Court's directives in October 2019. 

Increased Rating

Disability ratings are determined by applying the criteria set forth in the 

VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. 

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 

Degenerative arthritis is rated based on limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. Where there is noncompensable limitation of motion, a 10 percent evaluation is assigned for each major joint or group of minor joints, where the limitation is objectively confirmed by swelling, muscle spasm, or satisfactory evidence of painful motion. Where there is no limitation of motion, a 10 percent evaluation is assigned for x-ray evidence of involvement of two or more major joints or minor joint groups, and a 20 percent evaluation is assigned for x-ray evidence of involvement of two or more major joints or minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003, Note (1). 

Effective February 7, 2021, DC 5010 provides that traumatic arthritis is now to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. 

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); 

a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a 

[or 4.73] criteria.").

However, a veteran may be entitled to a higher disability evaluation than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes "additional functional lossi.e., 'the inability... to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance'including as due to pain and/or other factors" or "reduction of a joint's normal excursion of movement in different planes, including changes in the joint's range of movement, strength, fatigability, or coordination." Lyles v. Shulkin, 29 Vet. App. 107, 117-18 (2017) (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45); Mitchell v. Shinseki, 25 Vet. App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995).

The intent of the rating schedule is to recognize painful motion with joint and periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59.

The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a).

Entitlement to a rating in excess of 20 percent prior to December 11, 2019 and 40 percent thereafter for a lumbar disability.

The Veteran receives a 20 percent rating prior to December 11, 2019 and 

40 percent thereafter for his lumbar disability based on the General Rating Formula for the Spine under Diagnostic Code 5242. 38 C.F.R. § 4.71a, DC 5242.

In October 2019, the Board remanded this issue to obtain an examination that reported active and passive range of motion, as well as in weight-bearing and non-weightbearing. 

Under the General Rating Formula for the Spine, in pertinent part, a 20 percent evaluation is warranted where the evidence shows forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, 

the combined range of motion of the thoracolumbar spine not greater than 

120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 

A 30 percent rating is warranted for forward flexion of the cervical spine limited to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. 

A 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The criteria for a 50 percent rating are unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Associated objective neurological abnormalities are rated separately under the appropriate diagnostic code. General Rating Formula for the Spine, Note (1). 

Alternatively, a back disorder can be rated as Intervertebral Disc Syndrome (IVDS) based on incapacitating episodes. Under those criteria, found at Diagnostic Code 5243, a ten percent evaluation requires incapacitating episodes having a total duration of at least one week, but less than 2 weeks during the past 12 months, and 20 percent evaluating requires incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks during the past 12 months. 

A 40 percent rating is warranted for incapacitating episodes having a total duration of less than six weeks, but more than four weeks and a 60 percent rating is warranted if incapacitating episodes have a total duration of at least six weeks during the past 12 months. There is no corresponding note allowing for the separate evaluation of any associated neurologic abnormalities. 38 C.F.R. § 4.71a.

Effective February 7, 2021, VA amended DC 5243 to clarify to "assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses." Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5243). 

 

The Veteran underwent a VA examination in October 2011.The Veteran reported flare-ups where he would have limited ability to sit, stand, and walk. He had forward flexion of 60 degrees with pain at 40 degrees and extension of 5 degrees. He was able to perform three times repetitive use testing and had accompanying reduced range of motion. The examiner recorded functional loss/impairment in that he had less movement than normal, pain on movement, interference with sitting, standing, and/or weight-bearing, and limited weightlifting. Additionally, he did not have localized tenderness/pain on palpation. The examiner found that the Veteran had guarding/muscle spasms of the thoracolumbar spine but did not result in abnormal gait or spinal contour. He had normal muscle strength and did not have muscle atrophy. The examiner found the Veteran had IVDS but had not had incapacitating episodes over the past 12 months.

An additional VA examination was conducted in March 2018.The Veteran reported flare-ups that could last one to two days and he would have trouble lifting bending, and ambulatory activities. He also had pain without weakness, discoordination, or additional loss of range of motion during flare-ups. The Veteran reported functional loss/impairment in that he avoided prolonged standing, walking, bending, and lifting. He had forward flexion of 60 degrees and extension of 20 degrees. He was able to perform three times repetitive use testing and had no accompanying reduced range of motion or additional loss of function. The examiner reported that the Veteran's range of motion did not contribute to functional loss. He had pain with weight bearing, and there was objective evidence of localized tenderness/pain on palpation. The examiner recorded functional loss/impairment in that he had less movement than normal, pain on movement, interference with sitting, standing, and/or weight-bearing, and limited weightlifting. He had normal muscle strength and did not have muscle atrophy. The examiner explained that he was unable to opine regarding pain, weakness, fatigability, or incoordination regarding repeated use over a period of time or during flare-ups as the Veteran was not examined during a flare-up or after repeated use over time. Additionally, he did not have ankylosis.

His most recent examination is from December 2019. The Veteran stated that his back disability remained the same when compared to the March 2018 examination. He had chronic pain of five out of ten. He had daily flare-ups in the morning with pain of seven out of ten that lasted two hours. He had reduced range of motion during flare-ups. Stiffness and spasms were reported. He stated he had incapacitating episodes a few times per year that would last four to five days. 

The Veteran acknowledged functional loss in that he could not lift more than 

10 pounds and had difficulty with forward bending and twisting. He could sit for only 30 minutes. He had forward flexion of 55 degrees and extension of 

20 degrees. His range of motion limited activities that required flexion. He had pain on range of motion testing and on weight-bearing. He was able to perform three times repetitive use testing with no additional loss of function or range of motion. The examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time and during flare-ups. Pain significantly limited functional ability with repeated use over a period of time and during flare-ups. The examiner stated the Veteran would have no range of motion for forward flexion or extension. Pain caused interference with standing. He did not have ankylosis or intervertebral disc syndrome (IVDS). The examiner reported that passive, weight-bearing, and non-weightbearing range of motion testing would be the same as active range of motion with pain. Weight-bearing and non-weightbearing would be the same since structural changes affect range of motion equally as opposed to one being more limited. Non-weightbearing caused more radiculopathy symptoms. 

The Veteran also testified at a Board hearing in August 2014. He explained that he would need to warm up his muscles in the shower before he could tie his shoes. 

He also acknowledged pain that varied from six out of ten to days where it was ten out of ten. Moreover, he sometimes wears a back brace and utilizes lumbar support for his chair at his occupation. 

He testified at an additional virtual Board hearing in March 2021. He explained that his disability had worsened in approximately 2009 or 2010 with his second back surgery. He would worry about bending forward, climbing ladders, and no longer played golf. He participated in physical therapy and used a back brace. 

After review of the competent and probative evidence, the Board resolves reasonable doubt in favor of the Veteran, and finds that the competent, probative evidence warrants a rating of 40 percent for the period on appeal. The 2019 examination reported that the Veteran's forward flexion, when limited by pain during repeated use over time and during flare-ups, was 0 degrees. Additionally, 

he has had periods with flare-ups and functional loss. He has reported significant pain that caused him to lay down. 

He also has less movement that normal, weakened movement, excess fatigability, pain on movement, and interference with sitting, standing, and/or weight-bearing. The Board acknowledges that at other examinations (2011 and 2018), he has had better forward flexion (55 degrees). However, the Board finds that the Veteran's lumbar disability has additional loss of function through pain that causes the above functional impairment, and the Board finds that his symptoms are more nearly approximated by a rating of 40 percent for limited flexion and functional loss. 

See 38 C.F.R. §§ 4.40, 4.45, 4.59; Lyles v. Shulkin, 29 Vet. App. 107, 117-18 (2017) (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45); Mitchell v. Shinseki, 25 Vet. App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995).

Moreover, the Board finds several factors produce a disability picture more nearly approximated by a 40 percent schedular rating. In this regard, the Veteran reports frequent pain, and he had less movement than normal and pain on movement. 

He has difficulty with lifting greater than 10 pounds and bending forward. He has reported near daily pain of up that could be up to 10/10. 38 C.F.R. §§ 4.40, 4.59. 

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An even higher rating is not warranted as the Veteran does not have unfavorable ankylosis or the functional equivalent of it as shown in the above reports. In this regard, the examinations show that while the Veteran has pain and functional impairment because of his limited range of motion, he is able to perform some range of motion which demonstrates that he does not have ankylosis or the equivalent of it. The examiners have reported the Veteran does not have ankylosis. See 38 C.F.R. § 4.71a, Note (5) ("unfavorable ankylosis is a condition in which... the entire thoracolumbar spine... is fixed in flexion or extension"). The Board acknowledges the 2019 examination report showing the Veteran has had zero degrees of flexion during flare-ups or during repeated use over time. However, 

the competent and probative evidence of record, to include the above examination reports as well as the Veteran's credible lay testimony and statements do not show that he has had ankylosis during the period on appeal as the evidence does not show his spine is fixed in flexion or extension. A higher rating of 60 percent for IVDS is not warranted as he had not had incapacitating episodes with total duration of at least six weeks during the past 12 months. The Veteran has not had IVDS that required bed rest per the controlling regulation.  

 

 

Paul Sorisio

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	G. Morales, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.