Citation Nr: 21070708 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 10-20 589 DATE: November 24, 2021 ORDER Entitlement to a disability evaluation greater than 20 percent for herniated discs at L4, L5, and S1 is denied. FINDING OF FACT The Veteran's herniated discs at L4, L5, and S1 are manifested by pain on motion, with functional loss due to pain upon movement. Forward flexion is limited to no worse than 35 degrees; the Veteran has intervertebral disc syndrome, but has not been prescribed bed rest of at least 4 weeks in a year. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for the Veteran's herniated discs at L4, L5, S1 have not been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235 5243 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from May 1988 to November 1988 and January 1990 to November 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In October 2012, the Board remanded this appeal for further development. In a June 2016 decision, the Board denied the Veteran's claim for an increased disability evaluation for his service-connected herniated discs at L4, L5, and S1. The Veteran appealed the denial of the claim for an increased disability evaluation to the Court of Appeals for Veterans Claims (Court). In February 2017, the parties filed a Joint Motion for Remand (Joint Motion or JMPR) which requested that the Board's decision be vacated and remanded. A February 2017 Court Order granted the motion and remanded the claim for readjudication consistent with the terms of the Joint Motion. In May 2017 and February 2018, the Board remanded the Veteran's claim for an increased disability evaluation for additional development in compliance with the JMR. In a June 2020 decision, the Board again denied the Veteran's claim for a disability evaluation in excess of 20 percent for his service-connected herniated discs at L4, L5, and S1. The Veteran again appealed the denial of his claim to the Court, and in December 2020, the parties filed a JMR, requesting that the Board's decision be vacated and remanded. A January 2021 Court Order granted the motion and remanded the claim for readjudication consistent with the terms of the Joint Motion. In May 2021, the Board remanded the Veteran's claim to the Agency of Original Jurisdiction (AOJ). A supplemental statement of the case was most recently issued in August 2021. The case has since been returned to the Board for appellate review. The Board finds that there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In addition, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. When evaluating musculoskeletal disabilities, VA must consider whether a higher evaluation is warranted, where the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. § § 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id.; Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (both citing to 38 C.F.R. § 4.40). Notably, during the appeal period, changes were made to 38 C.F.R. § 4.71a, Diagnostic Codes 5242 and 5243. Effective February 7, 2021, VA amended its regulations governing the schedule of rating musculoskeletal disabilities. See 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 Codes 5003, 5201, 5269). Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 1. Entitlement to an increased disability evaluation for herniated discs at L4, L5, and S1. The Veteran is assigned a 20 percent disability rating for his herniated discs at L4, L5, and S1 pursuant to the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5243. Lumbosacral and cervical spine disabilities are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine ("general rating formula"). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. Intervertebral disc syndrome (IVDS) is rated under the General Rating Formula for Rating Diseases and Injuries of the Spine or the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Formula for Rating IVDS Based on Incapacitating Episodes provides for ratings from 10 to 60 percent based on the frequency and duration of incapacitating episodes, defined in Note 1 as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The maximum 60 percent schedular rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the previous 12 months. The Board notes that effective February 7, 2021, the spine regulations were amended to state that Diagnostic Code 5243 governing intervertebral disc syndrome should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root, and that Diagnostic Code 5242 should apply to all other disc diagnoses. See 85 Fed. Reg. 76462 (Nov. 30, 2020) (effective 2/7/2021). As will be discussed below, this has no practical effect on the disability rating assigned. The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note 1 provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note 2 provides that, for VA compensation purposes, 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 cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. Note 4 provides that range of motion measurements are to be rounded to the nearest five degrees. Note 5 defines unfavorable ankylosis as 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. Note 6 provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. According to the general rating formula, a 10 percent evaluation is to be assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is to be assigned for 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 40 percent evaluation is to be assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is to be assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is to be assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5235 for vertebral fracture or dislocation; 5236 for sacroiliac injury and weakness; 5237 for lumbosacral strain; Diagnostic Code 5238 for spinal stenosis; Diagnostic Code 5239 for spondylolisthesis or segmental instability; Diagnostic Code 5240 for ankylosing spondylitis; Diagnostic Code 5241 for spinal fusion; Diagnostic Code 5242 for degenerative arthritis of the spine; and Diagnostic Code 5243 for intervertebral disc syndrome. The Veteran contends that he is entitled to a higher rating because his current disability evaluation does not property account for the severity of his symptoms. VA treatment records reflect complaints of pain, limited range of motion, limitations on standing and walking, and restrictions for work. A January 2009 VA medical treatment record reflected pain with flexion to 30 degrees. A January 2009 letter from private physician, M.L., M.D., stated that the Veteran should avoid bending, climbing, or lifting more than 15 pounds for the next two weeks. A February 2009 letter from private physician, P.P., M.D., noted that the Veteran was being treated for lower back pain. Dr. P stated that the Veteran was recommended to avoid heavy lifting, pulling, and pushing, as well as any extreme range of motion activity of back. A February 2009 VA medical treatment record shows that the Veteran was out on disability due to activity restrictions. The Veteran was provided a VA examination in February 2009. The Veteran reported that he occasionally wore a lumbar support, and took Vicodin, Tramadol, and Tylenol. The Veteran reported that he worked as a truck mechanic and had been out of work for the past few weeks because of his back pain. He reported over the past six months his back had been very painful. There were no bowel or bladder changes and no weakness. There was no history of recent physical therapy. The Veteran reported having epidural steroid injections a few years ago with good results, and that his pain was aggravated with bending and lifting. The Veteran denied experiencing any incapacitating episodes, and did not report experiencing flareups; he reported occasional use of a back brace and denied that his back interfered with daily activities. On physical examination, the lumbosacral spine, exhibited slight muscle spasms at bilateral paraspinal muscles. Range of motion was decreased due to the Veteran's complaints of pain; he had flexion to 70 degrees, extension to 20 degrees, lateral flexion to 20 degrees bilaterally, and lateral rotation to 30 degrees bilaterally, with complaints of pain upon flexion, extension, and left lateral flexion. After repetitive motion of the lumbosacral spine, there was no additional loss of joint function due to pain, fatigue, or lack of endurance; there was no weakness. The assessment was lumbar herniated discs and lumbar radiculopathy. A January 2012 VA medical treatment record documented that the Veteran had an acute back flare, and was given a 72 hour light duty for his job. A January 2012 private medical treatment record noted that the Veteran had limited range of motion, pain, and could not sit or stand for more than fifteen to twenty minutes. A March 2012 operative report shows that the Veteran had a pre-operative diagnosis of lumbar disc herniation, and underwent discectomy and laminectomy. A March 2012 private medical treatment record showed that the Veteran had impaired range of motion, pain, impaired strength, poor sitting posture, and impaired activities of daily living. Records showed that the Veteran had 55 degrees of flexion. Other private medical treatment records dated from April 2012 to May 2012 show flexion ranging from 55 to 65 degrees of flexion. The Veteran was provided a VA medical examination in November 2012. The Veteran stated that he had physical therapy and complained of persistent pain in the low back. The VA examiner noted that the Veteran underwent surgery in March 2012 consisting of translaminar lumbar discectomy at L5-S1 and, posterolateral lumbar discectomy at L4-L5; the Veteran reported that, after surgery, the radiating pain in the left lower extremity essentially resolved, but that he continued to experience intermittent low back pain on average 3/10 aggravated by bending and sitting, that is worse in the morning. He did not report tingling, numbness, or weakness of the bilateral lower extremities, and bowel and bladder functions were intact. The Veteran reported the occasional use of Percocet or Diclofenac with benefit. The Veteran indicated that he returned to work as a diesel mechanic in May 2012, after his surgery, and he could perform his job duty despite the pain; he denied experiencing incapacitating episodes once he recovered from his surgery. His pain did not interfere with activities of daily living, but the Veteran reported occasional use of a back brace. On physical examination, the lumbar spine demonstrated no gross deformity. There was mild tenderness to palpation over the lumbar paraspinals. Range of motion was 45 degrees of flexion with pain at the end of range of motion, extension 0 to 25 degrees without pain, and lateral flexion to 30 degrees on the left and 25 degrees on the right, without pain. There was no additional loss of motion upon repetitive use testing and the Veteran did not report experiencing decreased range of motion during flareups. There was no evidence of ankylosis of the lumbar spine. 'There was no evidence of fatigue, weakness, or lack of endurance. Gait was normal without assistive device. The. impression was lumbar degenerative disc disease at L4-5 and L5-S1 status post discectomy at L4-5 and L5-S1 secondary to disc herniation. The Veteran was afforded a new VA examination in August 2017, to comply with the February 2017 JMR. The Veteran reported that he worked as a shop supervisor, which is not very physically strenuous. Upon examination, the Veteran had forward flexion to 60 degrees, with extension to 25 degrees, lateral flexion to 20 degrees bilaterally, and lateral rotation to 30 degrees bilaterally, with pain in all planes of motion and pain on weightbearing. Repetitive use testing did not result in additional loss of range of motion; flareups created functional loss due to pain, lack of endurance, and fatigue. There was no muscle spasm, atrophy, or ankylosis; the Veteran experienced guarding, without abnormal gait or spinal contour, and tenderness to palpation. According to the report, the Veteran reported experiencing functional loss in terms of limited ability to lift more than 10 pounds, and inability to bend at the waist; he avoids prolonged sitting and standing, and cannot run. The VA examiner found that the Veteran's manifestations as observed on examination were medically consistent with the Veteran's statements describing functional loss due to pain during flare-ups. The VA examiner indicated that the Veteran has intervertebral disc syndrome. In May 2018, the RO obtained an addendum opinion to comply with the JMR. The examiner stated that during the August 2017 examination the Veteran reported that during his flares he experienced increased pain, fatigue, and lack of endurance. However, since the examination was not done during a flare-up estimating his additional range of motion loss would be entirely speculative. Additionally, regarding the 2012 examination, the examiner stated that she was not the examiner who conducted the November 2012 examination and would have to defer to the facts as presented by the examination report. The examiner continued that she could not offer an opinion on the Veteran's range of motion as the examination took place too long ago and she was not the one evaluating on the examination. The Veteran was provided with a July 2019 VA back examination. The Veteran reported that he has had increasing back pain since his surgery, that he wears a back brace for his back pain, that he works a sedentary job, and that he uses naproxen for his pain. The Veteran additionally reported that he experiences flare-ups that cause increased pain. Range of motion measurements were reported as abnormal with forward flexion to 50 degrees, extension to 10 degrees, right and left lateral flexion to 15 degrees, and right and left rotation each to 15 degrees. Pain was noted on the examination that caused functional loss; however, the Veteran was able to perform repetitive use testing without additional functional loss. The examiner reported that the examination was not being conducted during a flare-up, however, the examination was medically consistent with the Veteran's statements describing functional loss during flare-ups. The examiner continued that pain, weakness, fatiguability, and incoordination do not significantly limit the Veteran's functional ability during a flare-up. The examiner noted that the Veteran experiences pain on weight bearing and non-weight bearing, pain on passive range of motion, and guarding which results in an abnormal gait or spinal contour. No ankylosis of the spine was reported. The VA examiner stated that the Veteran has IVDS, however, the examiner indicated there have been no episodes of acute signs and symptoms that required bed rest prescribed by a physician in the last 12 months. VA and private treatment records indicate that the Veteran has continued to receive treatment for back pain, however, they do not reflect manifestations of the Veteran's lower back disability that are more severe than those documented within the above VA examination. However, the parties to the December 2020 JMR determined that the July 2019 VA examination was inadequate because the VA examiner did not specify where in the regular range of motion pain began to cause functional loss, and because the examination report contained inconsistent findings; the examiner noted pain, weakness, fatigability, or incoordination did not significantly limit the Veteran's functional ability with flare-ups or repeated use over time, but the Veteran reported that his back pain prevented him from sitting for prolonged periods, limited all ability to lift and bend, and generally limited use of his spine. Thus, in an effort to comply with the December 2020 JMR, the Board remanded the Veteran's claim for a new VA examination, which was provided in August 2021. According to that VA examination report, the Veteran had forward flexion to 40 degrees, extension to 15 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 30 degrees. The examination report reflects that that the Veteran experienced pain on all planes of motion; repetitive use and flare-ups were estimated to reduce flexion to 35 degrees, with the other planes of motion unchanged. There was pain on active motion, but not on weight-bearing; there was no tenderness to palpation, muscle spasm, guarding, or muscle atrophy. The VA examination report indicates that there was pain on motion, without incoordination or weakness; strength and reflex testing was normal. The VA examiner noted that the Veteran's functional loss was secondary to pain, and that the Veteran reported experiencing mild flareups approximately once a week with lifting and severe flareups every couple of months, relieved with rest. The VA examiner found that the Veteran does not have IVDS. The VA examiner also noted that the Veteran occasionally requires use of a brace. After a review of all the evidence, the Board finds that the Veteran's disability picture more nearly approximates the criteria for the currently assigned 20 percent disability evaluation, for the entire rating period on appeal, for his service-connected herniated discs at L4, L5, and S1. In this regard, the Board points out that the lay and medical evidence of record demonstrates that the Veteran's symptoms do not result in additional functional limitation to a degree that would support a rating in excess of a 20 percent disability rating at any time during the appeal period. The evidence shows that the Veteran experiences forward flexion of the thoracolumbar spine which is better than 30 degrees which is required for a higher rating based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 5242. The Board notes that in 2009 his forward flexion was noted to be 30 degrees, but this notation was limited to a flare-up at that time that lasted no more than two weeks, and has not been repeated in any of the examinations or treatment records since that time. Thus, the Board finds that it does not represent limitation of motion to 30 degrees flexion or evidence of consistent flare-ups at this level of limited motion. Here, the lay evidence has been considered; however, that evidence when accepted as correct does not establish that he is functionally limited to 30 degrees or less forward flexion. Further, the evidence does not show favorable or unfavorable ankylosis of the entire thoracolumbar spine during the rating period on appeal. Additionally, the Veteran does not experience incontinence or bowel complaints as a result of his service-connected herniated discs at L4, L5, and S1. The Board has considered whether additional functional impairment due to factors such as pain, weakness and fatigability demonstrate additional limitation of motion or function to warrant a higher rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca at 206-07. The evidence shows no atrophy or decrease in strength. To the extent that the Veteran claims that his pain upon motion is the equivalent of limited motion, the Board finds that the Veteran's subjective complaints of pain have been contemplated in the current rating assignment, as the current rating is based on the objectively demonstrated reduced motion and impairment, including during a flare-up. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). See also Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). Moreover, the available medical findings do not show that painful motion, limitation of motion on repetitive use testing, or pain or limitation of motion on active motion/passive motion/in weight-bearing/nonweight-bearing resulted in functional loss warranting the assignment of any higher evaluation for the thoracolumbar spine during the entire appeal period. See Correia v. McDonald, 28 Vet. App. 158 (2016). To the extent that the Veteran reports flare-ups limiting his ability to bend and lift objects, as well as complaints of difficulty with prolonged activity, the Board finds that the Veteran's flare-ups, especially in light of their frequency, do not show that the evidence more nearly approximates a disability picture with forward flexion of the spine limited to 30 degrees or less; to this point, the Board reiterates that flareups were estimated as limiting range of motion to no worse than 35 degrees flexion. 38 C.F.R. §§ 4.7, 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Therefore, the lay and medical evidence demonstrates that the Veteran's symptoms do not result in additional functional limitation to a degree that would support a rating in excess of a 20 percent disability rating at any point during the rating period on appeal. With respect to a higher evaluation based on incapacitating episodes under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, as noted earlier, although the Veteran was been diagnosed with IVDS, and the Veteran's medical records reflect a history of chronic pain requiring activity restrictions and light duty at work, the medical evidence clearly demonstrates that the Veteran does not have IVDS which is productive of incapacitating episodes requiring physician prescribed best rest having a total duration of at least 4 weeks during a 12-month period as contemplated by a higher evaluation. None of the VA examiners found that the Veteran's IVDS is productive of incapacitating episodes, and review of the Veteran's treatments record also do not reveal any periods of physician prescribed bed rest, other than following his 2012 back surgery, for which the Veteran received a temporary total disability evaluation. The Board acknowledges the Veteran's characterizations of his flareups as incapacitating episodes to the extent that he missed time at work due to his back, but points out that the rating criteria specifically defines incapacitating episodes as those requiring prescribed bed rest by a physician; the Veteran does not have incapacitating episodes as defined by the rating criteria. With consideration of the provisions of Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, the Veteran was granted service connection for radiculopathy of the right and left lower extremities and assigned separate disability evaluations for each lower extremity. As the Veteran is separately evaluated for his lower extremity neurological deficits, it is not for consideration here. As such, the Board finds that the evidence of record reveals manifestations consistent with a 20 percent evaluation, but no higher, for the entire rating period on appeal for service-connected herniated discs at L4, L5, and S1. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Brokowsky, 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.