Citation Nr: 21072568 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 16-45 662 DATE: December 3, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for a low back disability prior to November 11, 2019 and in excess of 40 percent thereafter is denied. FINDINGS OF FACT 1. The Veteran has not had an incapacitating episode nor a period of doctor prescribed bedrest during the period on appeal, excluding from April 12, 2016 to June 1, 2016. 2. Prior to November 11, 2019, the Veteran's low back disability manifested with a forward flexion of 70 degrees and a total range of motion of 200 degrees at worst. 3. At no point in time during the period on appeal did the Veteran have favorable or unfavorable ankylosis of the spine. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for low back disability prior to November 11, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 2. The criteria for a rating in excess of 40 percent for low back disability after November 11, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1970 until his honorable discharge in November 1970, from January 1980 until his honorable discharge in July 1984, from April 1985 until his honorable discharge in August 1985, and from November 1990 until his honorable discharge in September 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision of the Regional Office of the Department of Veterans Affairs (VA). In November 2018, the Board remanded the case to the Regional Office for further development. Specifically, the Board directed the Regional Office to obtain any outstanding treatment records and to schedule a new VA examination addressing the severity of the Veteran's lower back disability. The claim was then remanded again in July 2021 in order for the Regional Office to fulfill its duty to assist the Veteran to develop the claim and obtain outstanding private treatment records. Those records were obtained, and he was awarded a temporary evaluation of 100 percent effective April 12, 2016 to June 1, 2016, based on surgical or other treatment necessitating convalescence. The claim now returns to the Board. INCREASED RATING Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). In addition, when VA evaluates musculoskeletal disabilities under the Rating Schedule, it must determine whether or not the factors listed in 38 C.F.R. §§ 4.40, 4.45, and 4.59 are properly accounted for within the applicable DC criteria. Under section 4.40, VA must consider whether there is evidence of functional loss due to pain on movement and diminished excursion, strength, speed, coordination, and endurance, to include during flare-ups or after repetitive use. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2001). Pain on movement, standing alone, is not sufficient to warrant a higher rating under section 4.40. Id. (reaffirming that pain must affect some aspect of "the normal working movements of the body... in order to constitute functional loss"). Section 4.45 expands upon the concept of functional loss, noting six factors that VA must consider when evaluating a disability, namely: (1) less or (2) more movement than is normal; (3) weakened movement; (4) excess fatigability; (5) incoordination; and (6) pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing, to include during flare-ups or after repetitive use. 38 C.F.R. § 4.45. Noticeably, the aspects of functional loss listed in section 4.40 closely parallel the factors listed in section 4.45. Section 4.45 applies to muscles, nerves, as well as the entire musculoskeletal system. DeLuca v. Brown, 8 Vet. App. 202, 207 (1995). Under section 4.59, a veteran may be awarded the minimum compensable evaluation available under a given musculoskeletal DC, even if application of that DC would not support a compensable evaluation, where there is evidence of "actually painful, unstable, or malaligned joints." 38 C.F.R. § 4.59; Petitti v. McDonald, 27 Vet. App. 415, 427 (2015). Section 4.59 does not require medical evidence; it may be satisfied with lay and other non-medical evidence. Id. at 428. Thus, pain alone is compensable under section 4.59 for joint disabilities in general. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Entitlement to an initial rating in excess of 10 percent for a low back disability prior to November 11, 2019, excluding the temporary total evaluation from April 12, 2016 to June 1, 2016, and in excess of 40 percent thereafter. The Veteran asserts that his lumbar strain with degenerative joint disease is a herniation of the L3-4 discs. See Notice of Disagreement. He asserts that he has had two corrective surgeries, the first in February 2015 "to correct displacement of lumbar intervertebral disc" and the second in April 2016 "for lumbar radiculopathy lumbar stenosis." See VA Form 9. He also reported numbness in the left leg. Id. His claim for service connection was received by VA in November 2013. His claim was granted in a November 2014 rating decision and he was awarded a 10 percent disability rating effective November 6, 2013. He timely appealed. He was then awarded a rating of 40 percent in a July 2020 rating decision post remand. His claim returned to the Board and was remanded again. On remand, the Regional Office awarded him a temporary 100 percent rating for convalescence from April 12, 2016 to June 1, 2016. As such, his claim is for an initial increased rating and the period on appeal is from the day VA received his claim, November 6, 2013, to the present. Lumbar spine disabilities can be found in 38 C.F.R. § 4.71a, Diagnostic Codes 5242 and 5243. Intervertebral disc syndrome (IVDS) (preoperatively or postoperatively) is evaluated either under the General Rating Formula for Diseases and Injuries of the Spine (DC 5242) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (DC 5243), whichever results in the higher rating. See § 4.71a. The Board will address each for the period on appeal below. Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes IVDS can be found in 38 C.F.R. § 4.71a, Diagnostic Code 5243. The regulation states in relevant part: Intervertebral disc syndrome: With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months 20 [percent,] With incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months 10 [percent]. 38 C.F.R. § 4.71a. The private treatment notes from February 2015 show procedures listed for a surgery that took place February 19, 2015 which were a laminectomy and microdiskectomy. He was then discharged the next day with instructions for no heavy lifting or strenuous activities but was not prescribed bed rest. As such, he is not entitled to a temporary total evaluation for this period. The Veteran was awarded a temporary evaluation of 100 percent effective April 12, 2016 to June 1, 2016, based on surgical or other treatment necessitating convalescence in a September 2021 rating decision. Outside of this period there is no evidence that he has had incapacitating episodes or doctor prescribed bedrest. As such, he would receive a noncompensable rating under the IVDS rating criteria. General Rating Formula for Diseases and Injuries of the Spine The general rating formula for the spine, in relevant part, is as follows: Unfavorable ankylosis of the entire thoracolumbar spine 50 [percent,] ... forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine 40 [percent,] 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 [20 percent.] 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 10 [percent.] 38 C.F.R. § 4.71a. Although this regulation was updated in 2021, none of the updates are relevant to this claim. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. 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 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). Over the period on appeal, the Veteran has had three VA examinations, the first in August 2014, the second in January 2016, and the third in December 2019. He was diagnosed with a lumbar strain, lumbar degenerative disc disease, scoliosis, and spondylolisthesis in the August 2014 VA examination. His forward flexion was 70 degrees on initial and subsequent testing. His total range of motion was 210 degrees and 200 degrees when in pain. Repetitive use testing did not change his range of motion. Pain on movement was noted; however, he did not have ankylosis, guarding, muscle spasms, or gait issues. Radiculopathy was also not present. A June 2014 x-ray of the lumbar spine showed scoliosis with convexity to the left with scattered degenerative changes. There was no evidence that his scoliosis was caused by guarding or muscle spasms. These findings align with the 10 percent rating criteria but not higher. The VA treatment records do not provide any additional evidence that would provide a higher rating. He is not entitled to the next highest rating of 20 percent because his combined range of motion was 200 degrees and his forward flexion was 70 degrees at its worst. The next VA examination in January 2016 documented a forward flexion of 75 degrees and a combined range of motion of 215 degrees. There was no evidence of pain with weight bearing and no additional loss with repetitive use. Pain, weakness, fatigability, or incoordination did not further limit functional ability. Again, guarding and muscle spasms were not present, nor was radiculopathy, neurologic abnormalities, or ankylosis. Similarly, these findings correlate to a 10 percent rating but no higher. The Veteran had his third VA examination in December 2019. In this examination his forward flexion was 35 degrees, and his total range of motion was 105 degrees. This would place him in the 20 percent rating category. However, after repeated use over time, the examiner found that his forward flexion would decrease to 30 degrees. This made him eligible for a 40 percent rating as the rating criteria provide for such rating when there is forward flexion of the thoracolumbar spine 30 degrees or less. He did not have ankylosis of the spine. Again, the VA treatment records do not provide any additional evidence that would provide a higher rating. As such, he is not entitled to a higher rating. "Ankylosis" is the "immobility and consolidation of a joint due to disease, in jury, or surgical procedure." Dorland's Illustrated Medical Dictionary 94 (33d ed. 2019). No medical evidence of record documented that the Veteran experienced favorable or unfavorable ankylosis of the entire thoracolumbar spine or entire spine during the appeal period. Nor does the evidence of record establish, or reasonably suggest, that the Veteran experienced the functional equivalent of ankylosis of the entire thoracolumbar spine or entire spine during the appeal period, favorable or unfavorable. See Chavis v. McDonough, 34 Vet. App. 1, 2021 U.S. App. Vet. Claims LEXIS 660, 25-34 (April 16, 2021). Thus, in absence of evidence establishing or approximating ankylosis of the entire thoracolumbar spine or entire spine, favorable or unfavorable, during the appeal period, a rating in excess of 40 percent is not warranted. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Johnston, 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.