Citation Nr: 21072047 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 16-02 915 DATE: December 2, 2021 ORDER 1. Prior to July 29, 2021, an initial rating in excess of 20 percent for lumbar spine disorder is denied. 2. Since July 29, 2021, a rating in excess of 40 percent for lumbar spine disorder is denied. FINDINGS OF FACT 1. Prior to July 29, 2021, the Veteran's lumbar fusion resulted in painful motion, but not forward flexion limited to 30 degrees or less, ankylosis, or intervertebral disc syndrome (IVDS). 2. Since July 29, 2021, the Veteran's lumbar fusion has not resulted in unfavorable ankylosis of the thoracolumbar spine, or episodes of IVDS resulting in prescribed bed rest. CONCLUSIONS OF LAW 1. Prior to July 29, 2021, the criteria for a disability rating in excess of 20 percent for lumbar spine disorder were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5243. 2. Since July 29, 2021, the criteria for an increased rating in excess of 40 percent for lumbosacral disability spine are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2007 to April 2015. This case is on appeal from a June 2015 rating decision. In February 2020, the Board remanded this claim for additional development. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). An initial rating in excess of 20 percent prior to July 29, 2021; and a rating in excess of 40 percent thereafter for lumbar spine disorder. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. The Veteran's low back disorder is rated under DC 5243, which is rated according to The General Rating Formula for evaluating the spine. 38 C.F.R. § 4.71a. The General Rating Formula provides for a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; 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 disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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 disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Following the rating criteria, Note 1 states: evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate DC. Under the Formula for Rating IVDS Based on Incapacitating Episodes, a 10 percent rating is warranted with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. Effective February 7, 2021, the DCs pertaining to the lumbar spine were amended. For purposes of this decision, the applicable rating criteria for those DCs did not materially change. See 85 Fed. Reg. 76453 (Nov. 30, 2020) (as corrected at 85 Fed. Reg. 85523 (Dec. 29, 2020), as corrected at 86 Fed. Reg. 8142 (Feb. 4, 2021)). 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; 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 criteria."). In addition, painful motion is entitled to at least the minimum compensable rating for a joint. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). Furthermore, an effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating-as well as for an initial rating or for staged ratings-is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). In determining when an increase is "factually ascertainable," all of the evidence must be looked to, including testimonial evidence and expert medical opinions, and an effective date must be assigned based on that evidence. See McGrath v. Gober, 14 Vet. App. 28, 35-36 (2000); VAOPGCPREC 12-98. Thus, "it is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date." Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010); see also Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Analysis The Veteran contends that a higher rating for his service-connected lumbar spine disorder is warranted. In a July 2015 correspondence, the Veteran reported he as "extreme limited motion" in the back. In January 2016 correspondence, the Veteran reported that the VA examiner at the April 2014 examination did not take into consideration repetitive use of back when bending over. He also reported that he can bend the back to a point but experiences extreme pain after. The Veteran reported that back pain will incapacitate him for a week to recoup from being overworked. The Veteran's service treatment records (STRs) show that he received treatment for back pain in June 2010 and March 2014. In April 2014, he underwent a military medical board evaluation for service discharge in regard to his lumbar spine disorder. The Veteran pain in the back. This board found that the Veteran experiences a "transformational lumber interbody fusion at the L5-S1 level without resolution of back or leg pain." The board reported that the Veteran has a smooth gait. Furthermore, the board concluded that despite "very poor" range of motion, the Veteran is able to sit in the upright position which the board reported "is functionally the equivalent of 90 degrees forward flexion," as opposed to the Veteran's claimed 30 degree flexion during the evaluation. In April 2015, the Veteran's separation examination is marked abnormal for the spine and lumbar pain from a lumbar fusion procedure in 2013. In April 2014, the Veteran was afforded VA examination for his lumbar fusion before discharge from service. The Veteran reported experiencing back pain since 2010 after performing heavy lifting exercises. Furthermore, he reported experiencing back pain aggravation during deployment, performing strenuous activities, and changing movement positions. The Veteran reported that he underwent a back surgical procedure in 2013 but the pain worsened. Also, the Veteran reported experiencing flareups, limiting physical activities. The physician reported forward flexion on range of motion and after repetitive-use at 45 with pain noted at 45 degrees, extension at 20 degrees with pain at 20 degrees, bilateral flexion at 30 degrees each and with pain at 30 degrees each; and bilateral rotation at 30 degrees each with pain at 30 degrees for each. Further, the physician reported that the Veteran experiences "no additional limitation of functional ability during reported flare ups or repeated use over time." Additionally, the physician denied presence of guarding, muscle spasms, abnormal gait, vertebral fractures and IVDS. The Veteran was treated at a VA facility for neck and back symptoms from 2015 to 2018. He reported experiencing worsening of back pain and flare-ups since a 2013 back surgical procedure. In June 2015, a staff physician reported that the Veteran experienced limited flexion and normal gait. The physician found mild to moderate lumbar spondylosis. During a September 2015 evaluation, the treating physician reported the presence of lumbosacral strain and abnormal gait. The physician also reported a lumbar flexion at 65 degrees, extension pain at 10 degrees, lateral bending at 15 degrees, right rotation at 15 degrees and left rotation at 20 degrees. Also, the physician reported that the Veteran experienced spasm throughout the lower thoracic and lumbar area. In an April 2016 evaluation, the physician reported a normal gait, but forward flexion at 45 degrees with some pain. In a June 2016 evaluation, the physician reported that the Veteran's lumbar fusion hardware showed no complications. In a January 2018, the physician reported the presence of mild arthritis. A July 2019 vocational rehabilitation report shows that the Veteran was hired in February 2019 on permanent full-time basis as an Assistant Designer. Furthermore, the report shows that the Veteran is able to move as needed within his work environment and is adjusting well. Pursuant to the February 2020 Board remand, the Veteran was afforded another VA examination on July 29, 2021. The Veteran reported worsening, constant severe lower back pain resulting in sleep impairment. He also reported experiencing movement limited by flareups once or twice a quarter but improving within 6 to 7 days. The Veteran further reported that back pain stopped him from performing his daily activities. The examiner reviewed the claims file. The examiner diagnosed the Veteran with IVDS and noted the spinal fusion and radiculopathy diagnoses from 2014. He reported forward flexion range of motion at 30 degrees with pain, extension range of motion at 10 degrees with pain, bilateral flexion range of motion at 15 degrees with pain, and bilateral rotation range of motion at 20 degrees with pain. Also, he reported repetitive use range of motion on forward flexion at 20 degrees, extension at 10 degrees, and bilateral flexion at 10 degrees and rotation at 10 degrees with additional loss of range of motion on 3 repetitions of testing. Further, the examiner estimated range of motion during reported flareups of 5 degrees for each of forward flexion, extension, bilateral flexion and bilateral rotation. The examiner explained that passive range of motion testing could not be performed in order to "prevent further harm to the further harm to the veteran." He also reported the presence of pain on nonweight-bearing, pain on palpation, and guarding that does not result in abnormal gait or spine contour. He denied the presence of ankylosis, pain on weight-bearing, use of assistive devices, and IVDS requiring prescribed bed rest in the prior 12 months. Also, the examiner found that the Veteran's back disability prevents him from bending, stooping, lifting, or carrying weight. The Board finds that an initial 20 percent rating is warranted for the period prior to July 29, 2021 due to painful motion. However, an additional increased rating is not warranted prior to such date. In this regard, the April 2014 VA examiner reported that the Veteran had forward flexion limited to 45 degrees. While a VA attending physician reported the presence of muscle spasms and abnormal gait in addition to limitation of motion in September 2015, he reported forward flexion to 65 degrees. In addition, the Veteran's statements and treatment records do not indicate forward flexion limited to 30 degrees or less prior to July 2021. The evidence also does not indicate that the Veteran has experienced episodes of IVDS requiring prescribed bed rest. The Board notes that the lumbar spine ranges of motion during flareups were not estimated during this period. However, the July 2019 vocational rehabilitation report shows that the Veteran was working full-time basis as an Assistant Designer and that he was able to move as needed within his work environment. In addition, the Veteran has not claimed and the treatment records do not show that he experienced any flareups resulting in forward flexion limited to 30 degrees or less prior to the July 2021 examination. While the Veteran has consistently reported experiencing pain resulting in limitation of motion due to his low back disability and the April 2014 examiner found functional impairment due to this disability, such impairment is contemplated by the 20 percent rating already assigned for this disability prior to July 29, 2021. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5237; DeLuca, 8 Vet. App. at 202. The Board also finds that a rating in excess of 40 percent is not warranted since July 29, 2021. In this regard, the Veteran has not claimed and the medical evidence does not indicate the presence of functional ankylosis. In addition, the July 29, 2021 examiner found that the Veteran retains some range of motion even during flareups. Furthermore, the evidence does not show that the Veteran has experienced episodes of IVDS requiring prescribed bed rest. The Veteran has consistently reported experiencing pain due to his lumbar spine disorder and the examiners found functional impairment due to this disability. However, such impairment is contemplated by the assigned rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5243; DeLuca, 8 Vet. App. at 202. In addition, the Veteran is assigned two 10 percent evaluations for right lower extremity radiculopathy and there is no indication of any additional neurologic abnormalities related to the back disability. Furthermore, the Veteran reported that back pain results in sleep impairment. However, throughout the appeal period the Veteran has been service-connected for posttraumatic stress disorder (PTSD). As the PTSD is rated under the General Schedule for Rating for Mental Disorders, assigning a separate rating for sleep impairment would constitute pyramiding. See 38 C.F.R. §§ 4.14; 4.130. In sum, the preponderance of the evidence shows that, prior to July 29, 2021, the Veteran's lumbar spine disability has not resulted in in forward flexion limited to 30 degrees or less, ankylosis, or IVDS and, since July 29, 2021, it has not resulted in unfavorable ankylosis of the entire thoracolumbar spine. Therefore, there is no additional doubt to be resolved and higher ratings for the lumbar spine is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nevarez-Myrick, Nancy 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.