Citation Nr: 21073964 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 15-25 945 DATE: December 13, 2021 ORDER Entitlement to an increased rating of 40 percent for thoracic and lumbar spine intervertebral disc syndrome (IVDS) & strain, status-post laminectomy (lumbar spine disability) from January 1, 2012 to October 8, 2015, is granted. Entitlement to a rating higher than 40 percent for thoracic and lumbar spine intervertebral disc syndrome & strain, status-post laminectomy (lumbar spine disability) from June 24, 2021 onward is denied. FINDINGS OF FACT 1. Resolving doubt in favor of the Veteran, from January 1, 2021 to October 8, 2015, his lumbar spine disability more nearly approximates forward flexion of 30 degrees or less due to functional limitations. 2. Throughout the appeal period, the Veteran's lumbar spine disability has not manifested with ankylosis or intervertebral disc syndrome (IVDS) with incapacitating episodes lasting at least six weeks. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating of 40 percent, but no higher, from January 1, 2012 to October 8, 2015, for a lumbar spine disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DCs 5235-5243. 2. The criteria for a rating in excess of 40 percent from June 24, 2021, onward, for a lumbar spine disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DCs 5235-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from October 1981 to December 2011. This matter has a long procedural history which has been outlined in prior Board decisions and is incorporated herein by reference. The Veteran appealed an October 2012 rating decision by the Agency of Original Jurisdiction (AOJ), to the Board of Veterans' Appeals (Board), and it was remanded by the Board in August 2018 for further development. The matter was later returned to the Board and denied in an April 2020 decision. The Veteran appealed the Board's April 2020 decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2021 Order, the Court vacated and remanded the Board's decision as to the issue of entitlement to an increased rating higher than 20 percent from January 1, 2012 to October 8, 2015 for service-connected lumbar spine disability. The matter was again remanded by the Board for an adequate examination in May 2021. The matter has returned to the Board for further appellate review. The Board is mindful of the fact that the Veteran did not appeal the claim of entitlement to (i) a disability rating higher than 40 percent from October 9, 2015, to August 3, 2017, and (ii) a disability rating higher than 20 percent from August 4, 2017, onwards for service-connected lumbar spine disability to the Court. Therefore, for the purpose of evaluating the propriety of the assigned rating for the service-connected lumbar spine disability in this decision, the Board will not address whether a rating higher than 40 percent from October 9, 2015, to August 4, 2017, and (ii) a rating higher than 20 percent from August 4, 2017, onwards for service-connected lumbar spine disability is warranted. 1. Entitlement to an increased rating of 40 percent for thoracic and lumbar spine intervertebral disc syndrome (IVDS) & strain, status-post laminectomy (lumbar spine disability) from January 1, 2012 to October 8, 2015 2. Entitlement to a rating higher than 40 percent for thoracic and lumbar spine intervertebral disc syndrome (IVDS) & strain, status-post laminectomy (lumbar spine disability) from June 24, 2021 onward The Veteran contends that his lumbar spine disability warrants higher ratings. For the reasons below and resolving all reasonable doubt in favor of the Veteran, the Board finds that an increased rating of 40 percent is warranted from January 1, 2012 to October 8, 2015, but that a rating higher than 40 percent is not warranted at any point during the appeal period. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). "Although pain may cause a functional loss, pain itself does not constitute functional loss." Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (emphasis in original). Painful motion is deemed to be limitation of motion and warrants the minimum compensable rating for the joint, even if there is no actual limitation of motion. 38 C.F.R. § 4.59; Lichtenfels v. Derwinski; 1 Vet. App. 484, 488 (1991). The provisions of 38 C.F.R. § 4.59 relating to painful motion are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board must also consider whether VA examiners have elicited information concerning the "severity, frequency, duration, or functional loss manifestations" of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The United States Court of Appeals for Veterans Claims (Court) also has issued the opinion of Correia v. McDonald, 28 Vet. App. 158 (2016), which clarifies additional requirements that VA examiners should address when assessing musculoskeletal disabilities, holding specifically, that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. The Veteran's lumbar spine disability is currently rated at 20 percent from January 1, 2012 to October 8, 2015; 40 percent from October 8, 2015, to August 4, 2017; 20 percent from August 4, 2017 to June 24, 2021; and 40 percent from June 24, 2021 under DC 5243. As noted above, this decision will be limited to the appeal period from January 1, 2012 to October 8, 2015 and from June 24, 2021 onward. Disabilities of the spine (other than IVDS when evaluated on the basis of incapacitating episodes) are to be rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, DCs 5235-5243. These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, and they "are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine." 68 Fed. Reg. 51, 454 (Aug. 27, 2003). Under the General Rating Formula, a 20 percent rating is warranted 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 rating is assigned where forward flexion of the thoracolumbar spine is to 30 degrees or less, or if there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, while a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. Additionally, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under the appropriate diagnostic codes. Id. at Note (1). 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 normal combined range of motion of the thoracolumbar spine is 240 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. 38 C.F.R. § 4.71a, DC 5242, Note (2). IVDS is evaluated under either the General Rating Formula or under the IVDS Formula, whichever results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1), Formula for Rating IVDS Based on Incapacitating Episodes. Under the IVDS Formula for intervertebral disc syndrome, a 10 percent disability rating is warranted when there are 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 IVDS with 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. A maximum 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome which requires bed rest prescribed by a physician and treatment by a physician. Turning to the evidence of record, the Veteran underwent a VA examination in August 2011. At that time, the Veteran reported experiencing stiffness, fatigue, spasms, and decreased motion. He also reported that during flare-ups, he experiences functional impairment, which he described as no jogging, no heel to toe, no lateral motion and limited motion. On clinical examination, the Veteran's range of motion (ROM) measurements were: 90 degrees forward flexion, 30 degrees extension, 30 degrees right lateral, 30 degrees left lateral flexion, 30 degrees right lateral rotation, 30 degrees left lateral rotation. There was no additional loss following repetitive use. There was no evidence of ankylosis. See August 2011 VA examination. An April 2013 MRI noted the following impression: "L4-L5 disc posterior central and leftward intraspinal extrusion with superior extension of disc material within the leftward ventral epidural space as high as the superior endplate of L$. There is resultant significant impression on the leftward ventral thecal sac from the L4-L5 disc space level of 2 the level of the upper body of L4. Since comparison MRI examination of the lumbar spine of August 6, 2006, the extrusion is much worse at this L4-L5 level." See April 2013 MRI. In July 2014, the Veteran stated that he has received a total of 13 Radiofrequency ablation (RFA) procedures, (6 or 7 of which are documented electronically) and that he experienced incapacitating episodes of IVDS for a total duration of at least two weeks but less than 4 weeks in the last 12 months. See July 2014 Correspondence. The Veteran provided a medical examination from the Naval Medical Center, Portsmouth in August 2015. The Veteran reported flareups of muscle spasms, incapacitation, loss of sleep, loss of ability to sit or lay down comfortably, inability to move, get out of bed, put on clothes, and loss of stability on the right side. On clinical evaluation, the Veteran's ROM was as follows: forward flexion to 32 degrees; extension to 23 degrees; right lateral flexion to 10 degrees; left lateral flexion to 7 degrees; right lateral rotation to 20 degrees; and left lateral rotation to 20 degrees. It was noted that forward flexion would be limited to 10 degrees during flare-ups and repetitive use over a period of time. The examiner reported that the Veteran's IVDS resulted in incapacitating episodes for at least 2 weeks but less than 4 weeks over the past 12 months. There was no evidence of ankylosis. The examiner opined that the lumbar spine condition would impact the Veteran's ability to perform occupational tasks. See October 2015 Disability Benefits Questionnaire (DBQ). The Veteran underwent a VA examination in August 2017. At the examination the Veteran reported that his flare-ups occur once per week and lasts 1-2 days. On clinical evaluation, his ROM was as follows: forward flexion to 40 degrees, extension to 10 degrees, and right and left lateral flexion and rotation to 10 degrees. The examiner noted that he was unable to say without speculation whether flareups and repeated use over time, would limit functional ability. The examiner indicated normal muscle strength, normal reflexes, decreased sensory, no atrophy, and no evidence of ankylosis. It was noted that the Veteran has IVDS with no bed rest. See August 2017 C&P examination. At the October 2019 VA examination, the Veteran reported flare-ups of the back that occur daily. The back flare-ups are moderate to severe. The back flare-ups lasted for variable durations The back flare-ups are precipitated by motion and standing/ambulating, The back flare-ups are alleviated by rest and RFA procedures. On examination, ROM was limited to 50 degrees for forward flexion; extension to 5 degrees; right lateral flexion to 20 degrees; left lateral flexion to 20 degrees; right lateral rotation to 5 degrees; and left lateral rotation to 5 degrees. Pain was noted on examination and caused functional loss. The ROM for forward flexion was limited to 50 degrees during flare-ups and repetitive use over a period of time. There was objective evidence of pain on passive range of motion testing of the back. There was objective evidence of pain on weight and non-weight bearing testing of the back There was no evidence of IVDS and ankylosis. See October 2019 C&P Examination. The Veteran most recently underwent a VA examination in June 2021. The Veteran reported severe flare-ups and described them as spasms of throbbing pain with inability to bear weight. The Veteran also reported difficulties walking and ambulation, unstable gait, difficulty tying shoes, wiping himself, difficulty putting clothes on, difficulty going from sitting to standing position, and inability to sleep lying down. ROM testing showed forward flexion to 20 degrees, extension as well as right and left lateral rotation and flexion to 10 degrees. The examiner noted that passive range of motion was not performed because it required two people to perform passive ROM test on the Veteran. The examiner found evidence of pain with weight bearing, active motion that causes functional loss. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue on the L4 and L5 area. Severity was noted as 6/10 with sharp throbbing pain on palpation. The examiner noted that the findings are reflective of the Veteran's radiculopathy. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion after three repetitions. There was no evidence of muscle atrophy or ankylosis. It was noted that the Veteran has IVDS with no incapacitating episodes and no bed rest. See June 2021 C&P Examination. An addendum opinion was sought from the June 2021 examiner regarding the severity, frequency, and duration of the Veteran's flare-ups both at the time of his separation from service and during the period on appeal from January 1, 2012 through October 8, 2015. The examiner stated the following: "Veteran developed increased stiffness with decreased ROM of back in spite of RFA treatments (radiofrequency ablations). Spasms to back were increasing more frequently. Radiculopathy symptoms occurred more often at rest compared to exertion in the past. Required a laminectomy to help resolve Veterans back conditions. Continued to manage symptoms with Motrin 1600. RFA [in] 1989,1991 and every 2 years. 2020 Laminectomy to back. Veteran has notably decreased ROM. Radicular symptoms were severe and initially treated with radio frequency ablation. Had Laminectomy subsequently due to refractory nature of RFA. Most significant manifestations are decreased ROM, persistent pain due to unresolved radiculopathy making Veteran unable to stand, sit, [and] weight bear in a desk job or menial labor job." See August 2021 C&P Examination. Based on the foregoing, and after considering additional functional loss due to pain and during flare ups, the Board finds that a 40 percent rating for the appeal period from January 1, 2012 to October 8, 2015 is warranted. Although no ROM testing showed forward flexion to 30 degrees or less prior to October 8, 2015, at the August 2011 VA examination the Veteran reported severe flare-ups, which the examiner did not take in account. Additionally, comparing the March 2013 and the August 2006 MRI examinations of the lumbar spine, the Veteran's disability was noted to have worsened. The Veteran has also reported pain during this period under review. When considering functional limitations due to pain, the Board finds that the Veteran's lumbar spine disability more nearly approximated 30 degrees or less. While the August 2011 examination shows forward flexion to 90 degrees, the Board notes that the examiner provided an inadequate opinion regarding additional functional loss after repeated use over time and during flare-ups, and therefore ROM findings may not be an adequate picture of the Veteran's disability with consideration of the DeLuca factors. Considering these cumulative findings, and affording the Veteran the benefit of the doubt, the Board finds that the functional limitations caused by pain and during flare-ups warrant a finding that the Veteran's lumbar spine disability has more nearly approximated forward flexion to 30 degrees from January 1, 2012 to October 8, 2015. This warrants the assignment of a 40 percent rating. The Veteran is currently rated at 40 percent from June 24, 2021. The Veteran through his representative contends the rating assigned is inadequate. To the extent that the examinations of record do not fully comply with requirements of DeLuca, Sharp, and/or Correia, the Board notes that the Veteran is now in receipt of the maximum schedular rating for lost range of motion for the appeal period under review, and any higher rating would require ankylosis. Thus, the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca, Sharp, and Correia do not apply. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997) (finding that where a Veteran is in receipt of the maximum schedular rating based on limitation of motion and a higher rating requires ankylosis, the regulations pertaining to functional impairment are not for application). The Board finds that a higher rating of 50 percent is not warranted at any point during the appeal period. This is because there is no clinical evidence of unfavorable ankylosis per the VA examinations or the medical records. Even with consideration of additional functional loss, the competent evidence does not reflect lumbar spine motion that approximates unfavorable ankylosis. The Veteran has not asserted otherwise. Moreover, a higher rating is also not warranted under the IVDS Formula as there is no evidence of incapacitating episodes having a total duration of at least 6 weeks in the past 12 months. The Board has considered whether separate ratings are warranted for neurologic impairment. The Veteran already has been granted service connection for radiculopathy of the left and right lower extremity. There is no evidence of record to indicate, and the Veteran has not contended, that he has any other neurologic impairments due to his lumbar spine disability. The Board also 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. 76453 (Nov. 30, 2020) (to be codified as 38 C.F.R. § 4.71a). However, in this case, the revised changes were essentially non-substantive. Thus, no additional consideration in this regard since February 7, 2021 onward is needed. In light of the foregoing and resolving all reasonable doubt in favor of the Veteran, the Board finds that a rating of 40 percent, but no higher, for the Veteran's lumbar spine disability is warranted for the periods under review. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.71a, DCs 5237, 5242; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. M. Rogers, 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.