Citation Nr: 21073418 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 16-11 139 DATE: December 8, 2021 ORDER Entitlement to an evaluation in excess of 20 percent for degenerative changes of the lumbar spine with herniated nucleus pulposus at L4-5 prior to October 16, 2020, is denied. Entitlement to an evaluation in excess of 40 percent for degenerative changes of the lumbar spine with herniated nucleus pulposus at L4-5 on or after October 16, 2020, is denied. FINDINGS OF FACT 1. Prior to October 16, 2020, the Veteran did not have forward flexion of the thoracolumbar spine limited to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. He also did not have incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 2. Since October 16, 2020, the Veteran's has not been shown to have unfavorable ankylosis of the entire thoracolumbar spine. He also does not have incapacitating episodes of at least 6 weeks in a 12-month period. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for degenerative changes of the lumbar spine with herniated nucleus pulposus at L4-5 prior to October 16, 2020, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. 2. The criteria for an evaluation in excess of 40 percent for degenerative changes of the lumbar spine with herniated nucleus pulposus at L4-5 on or after October 16, 2020, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1987 to June 1995. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in June 2017. A transcript is of record. The Board remanded the case for further development in September 2018 and June 2020. That development was completed, and the case has since been returned to the Board for appellate review During the pendency of the appeal, in a February 2020 rating decision, the agency of original jurisdiction (AOJ) increased the evaluation for the Veteran's service-connected lumbar spine disability to 20 percent, effective November 15, 2013. In an October 2020 rating decision, the AOJ increased the evaluation to 40 percent effective October 16, 2020. Nevertheless, a claimant will generally be presumed to be seeking the maximum benefit allowed by law or regulations, and a claim remains in controversy where less than the maximum benefit available is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). Thus, the issue remains on appeal. The Board notes that the Veteran's appeal had also included the issues of entitlement to service connection for myofascial pain syndrome and fatigue and entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU). However, in April 2020, the Veteran submitted a VA Form 10182 and elected to have those issues adjudicated under the Appeals Modernization Act (AMA) instead with a hearing before a Veterans Law Judge. Therefore, those issues are no longer on appeal in the legacy system, and they will be addressed in a separate decision under the AMA after a hearing is held. Law and Analysis 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). 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 rating 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. 38 C.F.R. § 4.7. 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 disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. In this case, the Veteran's service-connected degenerative changes of the lumbar spine with herniated nucleus pulposus at L4-5 is currently assigned a 20 percent evaluation prior to October 16, 2020, and a 40 percent evaluation thereafter, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5243. Diagnostic Code 5243 indicates that intervertebral disc syndrome should be evaluated either under the General Rating Formula for Diseases and Injuries to the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 20 percent evaluation is assigned when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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 warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is contemplated for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diagnostic Codes 5235-5243. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). For VA compensation purposes, normal range of motion for the thoracolumbar spine is 90 degrees of forward flexion, 30 degrees of extension, 30 degrees of left and right lateral flexion, and 30 degrees of left and right lateral rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees, consisting of the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. See 38 C.F.R. § 4.71a, General Rating Formula, Note (2) and Plate V. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent evaluation is assigned 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 evaluation is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is contemplated for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined 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. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. Id., Note (2). The Board notes that, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021, and the criteria that are more favorable to the Veteran will be applied. Effective February 7, 2021, the revised criteria state that Diagnostic Code 5243 should only be applied when there is disc herniation with compression and/or irritation of the adjacent nerve root and that Diagnostic Code 5242 should be considered for all other disc diagnoses. Prior to October 16, 2020 In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an increased evaluation for his service-connected lumbar spine disability prior to October 16, 2020. The evidence does not show that the Veteran had forward flexion of the thoracolumbar spine limited to 30 degrees or less prior to October 16, 2020. In fact, a June 2014 VA examination revealed forward flexion to 85 degrees, and a March 2019 VA examination found the Veteran to have 70 degrees of forward flexion. The October 2020 VA examiner later indicated that, in the absence of further objective evidence, passive and nonweight-bearing range of motion estimations for those examinations would be based on conjecture. The evidence also does not show that the Veteran had favorable ankylosis of the entire thoracolumbar spine. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (internal medical dictionary citation omitted). Based on the aforementioned range of motion findings, the record shows that the Veteran's thoracolumbar spine is not fixated or immobile, and the June 2014 and March 2019 VA examiners specifically stated that there was no ankylosis of the spine. Moreover, the Board notes that the Veteran has already been assigned a 20 percent rating for his lumbar spine disability prior to October 16, 2020, which contemplates painful motion. There is no x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. In addition, evaluations for arthritis based on x-ray findings cannot be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a , Diagnostic Code 5003, Note 1. Thus, a separate or higher evaluation is not warranted under Diagnostic Codes 5003 and 5010. The Board has also considered whether the Veteran is entitled to an evaluation in excess of 20 percent under the rating criteria for evaluating intervertebral disc syndrome. However, the evidence does not show that the Veteran had incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months prior to October 16, 2020. There are no treatment records showing that the Veteran was prescribed bedrest for such a duration. The June 2014 VA examiner diagnosed the Veteran with intervertebral disc syndrome, but indicated that he did not have any incapacitating episodes over the past 12 months. The March 2019 VA examiner noted that the Veteran did not have intervertebral disc syndrome and that he denied having any written bedrest orders by his physician for flare-ups. As such, the Veteran has not been shown to have met the criteria for an increased evaluation under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes prior to October 16, 2020. The Board further finds that a separate disability rating is not warranted because the evidence does not demonstrate that the Veteran suffers from a separate neurological disability distinct from his already service-connected lumbar spine disability and right and left sciatic nerve disabilities. See Bierman v. Brown, 6 Vet. App. 125, at 129-32 (1994). Separate disability 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 condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In fact, the March 2019 VA examiner indicated that the Veteran does not have any other neurologic abnormalities or findings related to her service-connected disability (such as bowel or bladder problems/pathologic reflexes). The Board has also considered the provisions of 38 C.F.R. § § 4.40, 4.45, 4.59, and the holding in DeLuca. However, an increased evaluation for the Veteran's lumbar spine disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms and impairment are supported by pathology consistent with the assigned 20 evaluation prior to October 16, 2020, and no higher. In this regard, the Board observes that the Veteran complained of pain on numerous occasions. However, the effect of the pain in the Veteran's lumbar spine is contemplated in the currently assigned evaluation. 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. The June 2014 VA examiner commented that pain, weakness, fatigability, or incoordination could significantly limit the Veteran's functional ability during flare-ups or when the lumbar spine is used repeatedly over a period of time. However, she stated that she would have to resort to speculation to determine the additional loss of range of motion, as a flare-up was not observed and there was no additional loss of motion with repetitive testing during the examination. The Board notes that medical opinions that are inconclusive and/or speculative in nature do not provide a sufficient basis upon which to support a claim. Moreover, the Veteran told the June 2014 VA examiner that he only had severe flare-ups one to two times per year, which lasted up to two weeks. Thus, at worst, severe flare-ups would have occurred only four weeks during a one-year period, and the Veteran further indicated that his last severe flare-up was approximately one-year earlier, which would have been prior to filing his claim for an increased evaluation. In addition, the June 2014 VA examination revealed objective evidence of painful motion beginning only at 85 degrees. The Veteran was also able to perform repetitive-use testing, and although he had pain on movement, there was no additional limitation in his range of motion. The examiner further noted that the Veteran had normal muscle strength and no muscle atrophy. The March 2019 VA examiner also noted pain upon examination, but found that the pain did not result in or cause functional loss. The Veteran was again able to perform repetitive-use testing without additional loss of function or range of motion after three repetitions. The examiner did indicate that pain, fatigue, and lack of endurance would significantly impact his functional ability with repeated use over a period of time, but he estimated that the Veteran would still maintain 50 degrees of forward flexion. In addition, despite experiencing them in the past, the Veteran denied having flare-ups, and he had normal muscle strength with no atrophy. The Board finds that the effect of the pain in the Veteran's back is contemplated in the currently assigned 20 percent evaluation and that he does not more nearly approximate the criteria for a higher evaluation prior to October 16, 2020. Indeed, there is no indication that he has more nearly approximated forward flexion limited to 30 degrees or less or ankylosis even when pain, repetitive use, and flare-ups are considered. Based on the foregoing, the Board finds that the weight of the evidence is against entitlement to an increased evaluation for the Veteran's service-connected lumbar spine disability prior to October 16, 2020. As such, the benefit-of-the-doubt rule does not apply, and the claims are denied in this regard. Gilbert, 1 Vet. App. 49 (1990). On or after October 16, 2020 In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an increased evaluation for his service-connected lumbar spine disability on or after October 16, 2020. The evidence does not show that the Veteran has unfavorable ankylosis of the entire thoracolumbar spine. In fact, an October 2020 VA examiner found him to have forward flexion to 40 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 10 degrees. Such findings do not demonstrate that his spine is fixated or immobile. Lewis v. Derwinski, 3 Vet. App. 259 (1992) (internal medical dictionary citation omitted). The Board does note that the October 2020 VA examiner indicated that passive range of motion could not be performed due to the potential of causing further injury or increased pain; however, she noted that there was no objective pain noted during the examination. She also indicated that, while the Veteran was seated (nonweight-bearing), he was able to bend forward 90 degrees and take off his shoes, extend to 20 degrees, flex laterally to 30 degrees to the left and right, and rotate side to side 20 degrees to the left and right. In addition, the examiner specifically indicated that the Veteran did not have ankylosis. Moreover, the Board notes that the Veteran has already been assigned a 40 percent rating for his lumbar spine disability since October 16, 2020, which contemplates painful motion. There is no x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. In addition, evaluations for arthritis based on x-ray findings cannot be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a , Diagnostic Code 5003, Note 1. Thus, a separate or higher evaluation is not warranted under Diagnostic Codes 5003 and 5010. The Board has also considered whether the Veteran is entitled to an evaluation in excess of 40 percent under the rating criteria for evaluating intervertebral disc syndrome. However, the evidence does not show that the Veteran had incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. There are no treatment records showing that the Veteran was prescribed bedrest for such a duration. The October 2020 VA examiner did diagnose the Veteran with intervertebral disc syndrome, but indicated that he did not have any episodes of acute signs and symptoms due to that disorder that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. As such, the Veteran has not been shown to have met the criteria for an increased evaluation under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes on or after October 16, 2020. The Board further finds that a separate disability rating is not warranted because the evidence does not demonstrate that the Veteran suffers from a separate neurological disability distinct from his already service-connected lumbar spine disability and right and left sciatic nerve disabilities. See Bierman v. Brown, 6 Vet. App. 125, at 129-32 (1994). Separate disability 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 condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In fact, the October 2020 VA examiner indicated that the Veteran does not have any other neurologic abnormalities or findings related to her service-connected disability (such as bowel or bladder problems/pathologic reflexes). The Board has also considered the provisions of 38 C.F.R. § § 4.40, 4.45, 4.59, and the holding in DeLuca. However, an increased evaluation is not warranted on the basis of functional loss due to pain or weakness in this case. The Veteran's symptoms and impairment are supported by pathology consistent with the currently assigned 40 percent evaluation. In this regard, the Board observes that the Veteran has complained of pain on numerous occasions. However, the effect of the pain in the Veteran's lumbar spine is contemplated in the currently assigned evaluation. 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. The Veteran told the October 2020 VA examination that his pain flares up with prolonged walking, standing, or sitting, and frequent bending. However, he reported that he only has flare-ups once or twice per year during which he has to be sedentary and lay down frequently. Given the reported frequency and duration, it appears that flare-ups only have a severe impact for approximately four days per year at worst. Moreover, the Veteran was able to perform repetitive-use testing during the October 2020 VA examination without additional loss of function or range of motion after three repetitions. The examiner indicated that pain and lack of endurance would significantly limit his functional ability with repeated use over a period of time and during flare-ups. However, she estimated that the Veteran would still have 30 degrees of forward flexion, 20 degrees of extension, right and left lateral flexion, and 10 degrees of right and lateral rotation. The currently assigned 40 percent evaluation contemplates limitation of forward flexion to 30 degrees, and the range of motion measurements do not demonstrate that the Veteran's spine would be fixated or immobile to more nearly approximate ankylosis during repetitive use or flare-ups. Based on the foregoing, the Board finds that the weight of the evidence is against increased ratings for the Veteran's service-connected lumbar spine disability on or after October 16, 2020. As such, the benefit-of-the-doubt rule does not apply, and the claims are denied in this regard. Gilbert, 1 Vet. App. 49 (1990). Conclusion Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M. Walker 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.