Citation Nr: 21070673 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 20-00 298 DATE: November 24, 2021 ORDER The May 2018 rating decision assigning a 20 percent disability evaluation for degenerative disc disease, degenerative joint disease, neuroforaminal stenosis, and spondylolisthesis (lumbar spine disability) from September 7, 2012 was not clearly and unmistakably erroneous, and restoration of the 20 percent rating effective September 7, 2012 is granted. The May 2018 rating decision assigning a 10 percent disability evaluation for a lumbar spinal surgery scar (spinal scar) was not clearly and unmistakably erroneous, and restoration of the 10 percent disability rating effective September 7, 2012 is granted. Entitlement to an increased rating in excess of 20 percent for a lumbar spine disability is denied. Entitlement to an increased rating in excess of 10 percent for a spinal scar is denied. FINDINGS OF FACT 1. In a May 31, 2018 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) granted service connection for a lumbar spine disability and spinal scar and assigned initial evaluations of 20 percent and 10 percent, respectively, effective September 7, 2012, the date of receipt of the claim to reopen. 2. In a September 11, 2018 rating decision, the RO reduced the disability evaluation for the lumbar spine disability to 10 percent from September 7, 2012 to May 7, 2018, and 20 percent thereafter, and reduced the disability evaluation for the spinal scar to noncompensable from September 7, 2012 to May 7, 2018, and 10 percent thereafter. 3. Clear and unmistakable error (CUE) was not committed in the May 2018 rating decision regarding the assignment of a 20 percent rating for a lumbar spine disability because there was at least some evidence at the time of the decision that the Veteran was entitled to a 20 percent rating. 4. CUE was not committed in the May 2018 rating decision regarding the assignment of a 10 percent rating for a spinal scar because there was at least some evidence at the time of the decision that the Veteran was entitled to a 10 percent rating. 5. For the entire period on appeal, the Veteran's lumbar spine disability manifested in symptoms more nearly approximating forward flexion of the thoracolumbar spine between 30 and 60 degrees or total combined range of motion not greater than 120 degrees without ankylosis or incapacitating episodes due to intervertebral disc syndrome (IVDS) requiring bedrest prescribed by a physician. 6. For the entire period on appeal, the Veteran subjectively complained of a painful spinal scar. CONCLUSIONS OF LAW 1. The criteria for CUE in the May 2018 rating decision assigning a 20 percent rating for a lumbar spine disability have not been met, warranting restoration of the 20 percent as of September 7, 2012. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a), 4.71a, Diagnostic Code (DC) 5237. 2. The criteria for CUE in the May 2018 rating decision assigning a 10 percent rating for a spinal scar have not been met, warranting restoration of the 10 percent as of September 7, 2012. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a), 4.118, DC's 7802, 7804. 3. The criteria for entitlement to an increased rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5237. 4. The criteria for entitlement to an increased rating in excess of 10 percent for a spinal scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, DC's 7802, 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1973 to September 1977. These matters are on appeal to the Board of Veterans' Appeals (Board) from a September 2018 rating decision. A hearing was held with the undersigned Veterans Law Judge in June 2021. At the outset, the Board acknowledges the evidence of unemployability based on his service-connected disabilities (namely, his lumbar spine disability) of record. However, the Veteran filed for entitlement to a total disability rating based on individual unemployability (TDIU) in April 2021, and it was denied in an August 2021 rating decision which has not yet been appealed. The Board finds that the issue is not currently on appeal to the Board, and it will not be addressed in this decision. CUE CUE is a very specific and rare kind of "error." It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). The error must be of a type that is outcome-determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). Notably, a mere disagreement as to how an adjudicator weighed and evaluated the evidence then before it can never rise to the stringent definition of clear and unmistakable error. See Baldwin v. West, 13 Vet. App. 1, 5 (1999); Damrel v. Brown, 6 Vet. App. 242, 246 (1994). CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated"; and (3) the commission of the alleged error must have "manifestly changed the outcome" of the decision being attacked on the basis of CUE at the time that decision was rendered. Evans v. McDonald, 27 Vet. App. 180,185 (2014), aff'd, 642 F.App'x 982 (Fed. Cir. 2016); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). In cases where the RO finds CUE in its own decision, the focus is on the evidence of record at the time of the original decision and whether the rating originally assigned was clearly and unmistakably erroneous. 1. CUE lumbar spine disability In the May 2018 rating decision, the Veteran was granted service connection for a lumbar spine disability and assigned a 20 percent rating effective September 7, 2012, the date of receipt of his claim to reopen. In a September 2018 rating decision, the RO found CUE in the May 2018 decision, and reassigned the Veteran a 10 percent rating from September 7, 2012 to May 7, 2018, and a 20 percent rating thereafter. The Veteran contends that the evidence does not establish CUE; rather, at most, the evidence relating to the lumbar spine rating amounted to a disagreement on how the facts were weighed. A brief explanation of the relevant provisions for rating spinal disabilities as it pertains to the CUE analysis is warranted. The Veteran's lumbar spine disability is currently rated under 38 C.F.R. § 4.71a, DC 5237. DC's 5235 through 5242 are evaluated either upon application of the General Rating Formula for Diseases and Injuries of the Spine ("General Formula"), or as IVDS under the Formula for Rating IVDS Based on Incapacitating Episodes ("IVDS Formula"), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under the General Formula, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; for combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; for muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or for vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. At the time of the May 2018 rating decision, the evidence consisted primarily of October 2016 and May 2018 VA examinations. In the October 2016 examination report, the Veteran described flare-ups of pain or aching, and difficulty running, bending over, twisting, using the bathroom, and sleeping. His forward flexion was 0 to 85 degrees with a combined range of motion (ROM) of 210 degrees. The reduced ROM and pain caused functional loss with difficulty bending, lifting, and carrying. The Veteran was able to perform repetitive use testing with three repetitions that did not result in additional loss of function or ROM. The Veteran was not observed immediately after repetitive use over time nor during a flare-up; the examiner indicated that there was no additional functional loss in those circumstances but also found the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss in those circumstances. There were no muscle spasms, localized tenderness, or guarding noted. Less movement than normal was indicated as an additional factor contributing to the disability. No ankylosis was indicated. The examiner indicated the Veteran did have IVDS, but he had no episodes of bed rest prescribed by a physician. In the interim, the Court of Appeals for Veterans' Claims (CAVC) decided Sharp v. Shulkin, 29 Vet. App. 26 (2017), which held that when conducting evaluations for musculoskeletal disabilities, examiners must inquire whether there are periods of flare-ups, and if the answer is "yes", examiners must state their severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, according to the veteran, to what extent, if any, they affect functional impairment. Id. at 34-36. In light of this decision, the October 2016 examination was deficient in that the examiner did not appear to attempt to elicit information from the Veteran in order to provide an accurate estimation of functional loss either during his reported flare-ups or following repeated use over time. In the May 2018 VA examination report, the Veteran reported intermittent and sharp thoracic and low back pain radiating to the hip area, stiffness, and spasms of the calf muscles. He described flare-ups particularly during cold weather, but at times randomly. He reported difficulty bending over, using the bathroom, with prolonged sitting and standing, and trimming his toenails. His initial forward flexion was 0 to 70 degrees with a combined ROM of 125 degrees. The examiner found that the reduced ROM, and pain noted on examination, did not result in or cause functional loss. There was evidence of pain with weight bearing. There was mild bilateral lumbar paraspinal tenderness noted. Following three repetitions, the Veteran's left lateral rotation was reduced to 5 degrees, bringing his combined ROM to 120 degrees. He was not observed following repetitive use over time or during a flare-up. The examiner indicated that the examination was medically consistent with the Veteran's statements describing functional loss during those circumstances, and opined that pain caused additional functional loss during flare-ups and after repeated use over time. The examiner was not able to describe this additional loss in terms of ROM; she explained that the loss of ROM is variable depending on how strenuously the joint was used, and that the estimated ROM was likely less during a flare-up. There was guarding due to pain, but it did not result in abnormal gait or spinal contour. Additional factors contributing to the disability were disturbance of locomotion and interference with sitting and standing. There was no IVDS indicated. VA and private treatment records reflect the Veteran's diagnosis and his chronic pain. An August 2015 VA treatment record reflects subjective limited flexion, and the Veteran complained of flare-ups of back pain in September 2015. A November 2017 record shows tenderness in the paraspinal thoracic area with good ROM. While these findings are relevant, they do not provide additional evidence pertaining to the rating criteria. Upon careful consideration of the above evidence, the Board concludes that CUE was not committed in the May 2018 rating decision. While the initial ROM provided in the October 2016 examination report was within the 10 percent criteria under the General Formula, the examiner failed to account for the Veteran's reported flare-ups, providing an inaccurate representation of his disability picture at that time. Particularly considering the findings in the May 2018 examination, which provided a more accurate representation of the Veteran's condition (i.e., following repetitive use over time, during flare-ups, with weight bearing), it would be reasonable to conclude that these findings represented the Veteran's condition over the entire appeal period, rather than representing a worsening. In other words, the evidence is debatable, meaning the assignment of a 20 percent rating prior to May 7, 2018 cannot be clearly and unmistakably erroneous. To summarize, CUE was not committed in the May 2018 rating decision, and the Veteran's 20 percent rating for a lumbar spine disability is restored back to September 7, 2012. 2. CUE spinal scar In the May 2018 rating decision, the Veteran was granted service connection for a spinal scar and assigned a 10 percent rating effective September 7, 2012. In the September 2018 rating decision, the RO found CUE in the May 2018 decision, and reassigned the Veteran a noncompensable rating from September 7, 2012 to May 7, 2018, and a 10 percent rating thereafter. The Veteran contends that the evidence does not establish CUE; rather, at most, the evidence relating to his spinal scar rating amounted to a disagreement on how the facts were weighed. A brief explanation of the relevant provisions for rating scars as it pertains to the CUE analysis is warranted. The Veteran's scar is rated under 38 C.F.R. § 4.118, DC 7802. DC 7802 applies to scars not of the head, face, or neck, that are not associated with underlying soft tissue damage. VA amended the criteria for rating skin disabilities effective August 13, 2018. DC 7802 was amended to remove "superficial and nonlinear" and was replaced with "not associated with underlying soft tissue damage." A maximum 10 percent rating is warranted for scarred areas greater than 929 square centimeters. DC 7804 for painful or unstable scars was unchanged by the August 2018 amendments. A 10 percent rating is warranted for one or two scars that are unstable or painful. A 20 percent rating is warranted for 3 or 4 such scars, and a 30 percent rating is warranted for 5 or more such scars. If one or more scars are both painful and unstable, 10 percent is to be added to the total rating. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. At the time of the May 2018 rating decision, the evidence consisted primarily of October 2016 and May 2018 VA examinations. In the October 2016 examination report for the lumbar spine disability, the examiner indicated that the Veteran did not have any painful or unstable scars, nor did he have a scar with a total area equal to or greater than 39 square centimeters. The scar was measured as 20.0 by 1.0 centimeters. In the May 2018 examination report for scars, the Veteran reported one painful scar of the posterior trunk following lumbar spine surgeries, rating the pain a 3 or 4 out of 10. The scar was not unstable. It was noted to be a linear scar measuring 25 by 0.5 centimeters and was tender to palpation. Upon consideration of the evidence, the Board concludes that CUE was not committed in the May 2018 rating decision. While the October 2016 examination report does reflect a non-painful scar, the May 2018 examination report consists of a more thorough and detailed examination of the scar (i.e., its appearance and residuals), rather than merely one question included in a lumbar spine disability examination. Thus, it would be reasonable to conclude that the May 2018 findings reflected a more accurate disability picture over the entire appeal period, rather than representing a worsening of the scar residuals. In other words, the evidence is debatable. Moreover, considering the subjective nature of pain, it would be at odds with the stringent standard of CUE to find in this instance that a 10 percent prior to May 7, 2018 was clearly and unmistakably erroneous. To summarize, CUE was not committed in the May 2018 rating decision, and the Veteran's 10 percent rating for a painful spinal scar is restored back to September 7, 2012. 3. Increased rating lumbar spine disability The Veteran contended in his hearing that his lumbar spine disability, currently rated as 20 percent disabling, has worsened. In addition to the relevant portions of the General Rating Formula outlined above, a 40 percent rating is assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or, unfavorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. When rating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Formula, note (2); see also Plate V. Unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen, dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation, or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Formula, Note (5). Additionally, the rating criteria under the General Rating Formula provides a separate evaluation for any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment. 38 C.F.R. § 4.71a, DC's 5235 to 5243 (Note 1). There is no evidence of such manifestations throughout the appeal period. Under the IVDS Formula, ratings are based on evidence of incapacitating episodes, defined as periods of acute signs and symptoms that require bed rest prescribed by a physician and treatment by a physician. A 10 percent is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. The maximum rating of 60 percent is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. During the pendency of the Veteran's increased rating claim on appeal, the rating criteria for evaluating arthritis and certain musculoskeletal disabilities were amended, effective on February 7, 2021. The change added certain DC's and amended the rating criteria for several DC's listed under 38 C.F.R. § 4.71a. With respect to the lumbar spine, the revised criteria instruct to assign DC 5243 for IVDS only when there is disc herniation with compression and/or irritation of the adjacent nerve root; and, to assign DC 5242 for all other disc diagnoses. As will be explained below, an assignment under the IVDS Formula is inapplicable. In addition to the evidence stated earlier in the decision, the Veteran recently underwent a VA examination in April 2021. He endorsed worsening pain over the years that had been occurring daily the past 18 months. The pain worsens with prolonged sitting and standing. He experiences daily sharp and burning pain from lower back down to his legs. The examiner indicated there were no flare-ups. The Veteran complained of functional impairment with daily pain that worsens with prolonged sitting and standing. His initial active forward flexion was 0 to 65 degrees with a combined ROM of 120 degrees. Pain was noted on all ranges. The reduced ROM itself did not contribute to a functional loss; however, pain caused functional loss on active motion such as with prolonged sitting and standing, which was reflected in terms of ROM in the initial active ROM values. There was moderate pain upon palpation. The Veteran was not examined immediately after repeated use over time, and the examiner indicated that procured evidence from the Veteran did not suggest pain, fatigability, weakness, lack of endurance, or incoordination significantly limiting functional ability after repeated use over time. Because the Veteran denied flare-ups, there was no inquiry into additional functional loss in that regard. The Veteran had guarding and muscle spasms that did not result in abnormal gait or spinal contour, and there were no additional factors contributing to the disability. There was no ankylosis and no IVDS indicated. The Board finds this examination to be adequate with Sharp and Correia v. McDonald, 28 Vet. App. 158 (2016), which requires testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing. The examiner indicated she procured sufficient evidence from the Veteran to conclude that no additional functional loss occurred after repeated use over time. Regarding the increased pain with active ROM movements such as prolonged sitting and standing, the reduced ROM is reflected in the initial active ROM values. While the Veteran had previously endorsed flare-ups, in this examination he indicated that his condition had progressed to the daily, chronic pain. Regarding Correia, active ROM was tested, though passive ROM testing was medically contraindicated. Similarly, while the deficiencies in the October 2016 examination have already been noted in this decision, the Board finds the May 2018 examination to be an accurate representation of the Veteran's disability picture as well. Regarding Correia, the examiner explained that it is not possible to do meaningful passive or nonweight-bearing ROM because the spine is bearing weight in all positions except supine and attempts to passively move the spine in that position invariably results in attempts at active movement. Although the May 2018 examiner explained he was unable to describe functional loss after repeated use over time or during flare-ups in terms of ROM, he opined that pain did result in functional loss during those circumstances that would reduce ROM. The Board acknowledges this deficiency in that it is unable to quantify this ROM loss based on this examination report alone. However, taken with the Veteran's statements in the May 2021 examination that the flare-up pain had progressed to daily, chronic pain worsening with active movement, and the examiner's quantifiable ROM values in those circumstances, the Board determines that the Veteran's most reduced ROM is accurately reflected by the record. Private treatment records from August 2018 show an antalgic gait and "edge of motion" of lumbar spine was limited due to discomfort. A May 2021 record reflects a stable gait. While these findings are relevant, they do not provide additional evidence pertaining to the rating criteria. As the Veteran is in receipt of a 20 percent rating, higher ratings are potentially available for incapacitating episodes, ankylosis, or forward flexion of the thoracolumbar spine 30 degrees or less. The evidence weighs against such manifestations. There is no evidence in the record of incapacitating episodes, ankylosis, nor the functional equivalent of ankylosis during a flare-up or after repetitive use. Nor is there evidence of forward flexion limited to 30 degrees or less for this appeal period. Although the October 2016 examiner indicated that the Veteran does suffer from IVDS, there have been no episodes of acute signs and symptoms that required bed rest prescribed by a physician in the past 12 months. As such, the IVDS Formula is inapplicable. See 38 C.F.R. § 4.25. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, a rating in excess of 20 percent for the Veteran's lumbar spine disability is not warranted on the basis of functional loss due to pain in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 20 percent rating, and no higher. In this regard, the Board observes that the Veteran complained of pain throughout the period and suffered additional ROM loss during the repetitive use testing as noted in the May 2018 examination, as well as on active motion as noted in the May 2021 examination. However, the effect of the pain and ROM loss in the lumbar spine is contemplated in the currently assigned 20 percent disability rating. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. Finally, the Board acknowledges that the Veteran also became service connected for bilateral lower extremity radiculopathy in the May 2018 rating decision. The Veteran did not appeal the ratings and did not discuss them at his hearing; he limited his appeal to the lumbar spine and spinal scar issues. Moreover, a July 2021 rating decision continued the radiculopathy ratings, and the Veteran has not appealed that decision. Thus, the Board determines that the issue of increased ratings for radiculopathy are not currently before the Board, and they will not be addressed in this decision. In conclusion, the Veteran is entitled to a 20 percent rating, but no higher, throughout the appeal period. An increased rating in excess of 20 percent is denied. 4. Increased rating spinal scar The Veteran contended in his hearing that his pain had increased and that an increased rating was warranted. Because the Veteran has subjectively complained of pain at the scar site throughout the appeal period, DC 7804 is the most applicable DC. Again, under DC 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful. A 20 percent rating is warranted for 3 or 4 such scars, and a 30 percent rating is warranted for 5 or more such scars. If one or more scars are both painful and unstable, 10 percent is to be added to the total rating. In addition to the evidence stated earlier in the decision, the Veteran recently underwent another examination in April 2021. He endorsed ongoing daily tenderness, soreness, and itching at the scar site that worsens when pressure is applied. The scar was not unstable and there was no underlying tissue damage. It was measured to be 25 by 0.5 centimeters with an approximate total area of 12.5 centimeters squared. As the Veteran is only service connected for a single painful scar that is stable and less than 144 square inches, under the rating criteria he is entitled to a 10 percent rating, but no higher. There are no other relevant DC's that would entitle the Veteran to a higher rating; thus, his claim must be denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Carroll, Associate 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.