Citation Nr: 21073996 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 09-40 519 DATE: December 13, 2021 ORDER Entitlement to an evaluation of 60 percent, but not higher, for degenerative arthritis, lumbar spine is granted from August 14, 2012, subject to the law and regulations governing the payment of monetary benefits. REMANDED Entitlement to a rating in excess of 20 percent prior to September 1, 2010 for degenerative arthritis, lumbar spine is remanded. Entitlement to a total disability based upon individual unemployability (TDIU) is remanded. FINDING OF FACT From August 14, 2012, the symptoms of Veteran's degenerative arthritis, lumbar spine during a flare-up result in incapacitating episodes having a total duration of at least 6 weeks during the past 12 months CONCLUSION OF LAW From August 14, 2012, the criteria for entitlement to an evaluation of 60 percent, but not higher, for degenerative arthritis, lumbar spine, are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237 and 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1967 to July 1975. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), the agency of original jurisdiction (AOJ). In February 2011, the Veteran testified at a hearing before a Veterans Law Judge who is no longer with the Board. A transcript of that proceeding is of record. In November 2017, the Veteran was advised that the Veterans Law Judge who conducted his hearing was no longer employed by the Board and he was advised of his right to request another hearing. He did not request a second hearing. This matter was previously before the Board in January 2012 and September 2014, at which times the Board remanded for further development of the record including obtaining a medical examination to assess the current severity of the Veteran's lumbar spine disability and to issue a Statement of the Case (SOC). This matter was again before the Board in April 2018 at which time the Board denied the claim for an increased rating for the lumbar spine disability. The Veteran timely appealed the April 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). In November 2018, pursuant to a Joint Motion for Remand (Joint Motion), the Court vacated the denial of the increased rating claim. The Board remanded the claim for additional development in August 2019. In a December 2020 decision, the Board found that there has been substantial compliance with its remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Board then denied entitlement to a rating in excess of 20 percent for lumbar degenerative arthritis prior to September 1, 2010, (excluding the period from January 7, 2009 to April 1, 2009); and denied a rating in excess of 40 percent for lumbar degenerative arthritis from August 14, 2012. The Board also granted an increased evaluation for degenerative arthritis of the lumbar spine with arthritis to 60 percent disabling effective September 1, 2010 to August 14, 2012, a favorable finding that may not be disturbed. The Veteran timely appealed the December 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). In August 2021, pursuant to a Joint Motion for Remand (Joint Motion), the Court vacated December 2020 decision of the Board, finding the Board erred when it failed to provide adequate reasons or bases for its determinations. Specifically, for the period prior to September 1, 2010, the parties agreed that remand was warranted for the Board to consider whether the November 2019 opinion substantially complied with its prior remand directives or whether another retrospective opinion is warranted. In addition, the parties agreed that the Board erred when it did not consider evidence that the Veteran's symptoms were equivalent to ankylosis. Increased Rating Entitlement to an evaluation in excess of 40 percent from August 14, 2012 for degenerative arthritis, lumbar spine The Veteran contends that his disability warrants an increased rating. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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. The General Rating Formula for Diseases and Injuries of the Spine provides for a 40 percent disability for forward flexion of the thoracolumbar spine 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 disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Note (2) of the General Rating Formula provides that, for VA compensation purposes, 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 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 thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, DC 5243. Note (5) to the General Rating Formula for Diseases and Injuries of the Spine provides that for VA compensation purposes, unfavorable ankylosis is 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. 38 C.F.R. § 4.71a. Diagnostic Code 5243 provides IVDS may be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under 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. The Formula for Rating IVDS Based on Incapacitating Episodes provides for a 40 percent rating with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is 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. During the pendency of the appeal, the criteria under Code 5243 were amended, effective February 7, 2021. Fed. Reg. 76453, 76463 (Nov. 30, 2020). When a law or regulation changes during the course of a claim, 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); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Under the new criteria, Code 5243 is only assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root. 85 Fed. Reg. at 76464. Code 5242 is assigned for all other disc diagnoses. Id. Since the old criteria are more favorable to the Veteran, they will be used herein. 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 specifically contemplated in the relevant rating criteria. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (with swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. 38 C.F.R. §§ 4.40, 4.45. Functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Analysis The Board notes that since August 14, 2012 the Veteran's lumbar spine disability was rated as 40 percent disabling. The Veteran's disability was rated according to Diagnostic Code 5242. In an August 2012 VA examination, the Veteran was diagnosed with IVDS in 2007. The examiner noted that the Veteran had vertebral fusion and laminectomy for degenerative disc disease of the lumbar spine in January 2009. The examiner noted that flare-ups impacted the function of his thoracolumbar spine. The Veteran described the impact of flare-ups as "It just aches to a 9/10 and I cannot do anything. And it is sharply stiff, preventing most movement." Range of motion, forward flexion, was noted as 0-35 degrees. Objective evidence of painful motion begins at 5 degrees. Extension ends at 10 degrees. No incapacitating episodes over the prior month due to IVDS were noted. The examiner noted that pain in his lumbar spine impacts the Veteran's ability to work and interferes with many ADLs such as household chores, shopping, bathing, and dressing. In June 2017, the Veteran attended an additional VA examination. The Veteran reported no flare-ups. He reported that he had to stop working because he could no longer stand or sit for more than 20 minutes. He could not walk for longer than 5-10 minutes and was unable to have sex due to bac spasms. He reported that he was taking prescribed pain medication and using an electric wheelchair constantly. ROM testing showed forward flexion limited to 50 degrees, extension limited to 15 degrees, right lateral flexion limited to 15 degrees, left lateral flexion limited to 10degrees, and right and left lateral rotation both limited to 20degrees. The examiner noted that range of motion itself contributed to functional loss. The examiner noted pain on examination also contributed to functional loss. The examiner found no objective evidence of tenderness to palpation over the left lower back. The Veteran had no additional loss of function or ROM after repetitive use testing; however, pain, significantly limited functional ability with repeated use over time. The examiner found no muscle spasm or guarding on examination. This examiner did not diagnose the Veteran with IVDS. Further, the examiner found no evidence of ankylosis, or other neurologic abnormalities related to a thoracolumbar spine condition. The Veteran was afforded a VA examination in November 2019. The examiner noted that the Veteran's right lower leg was amputated during service after he was injured when an airplane tire exploded. This led to gait disturbance and stress on his lower back, then lower back pain which has continued and progressed with burning pain, numbness, tingling down both legs from his back. He had surgery in in 2001 and again in March 2019 for a bulging disc and bone spur. The examiner noted that low back pain as still present at the time of the examination but improved status-post operation in 2019. The examiner noted lumbar radiculopathy in both legs. The Veteran reported flare-ups described as worsening of back pain and radiculopathy down his legs. Veteran reported functional loss or impairment as "difficult to run; difficult to walk/stand long periods of time; difficult to sit long periods of time; difficult to climb ladders/stairs; difficult to bend/lift/carry; lose balance easily. The examiner noted range of motion testing of 0 to 25 degrees, forward flexion; 0 to 5 degrees, extension; and 0 to 10 degrees, right lateral flexion, left lateral flexion, right lateral rotation, left lateral rotation. The examiner noted that pain noted on examination does not result in/cause functional loss. The examiner noted that pain significantly limits functional ability with repeated use over a period of time. Pain significantly limits functional ability with flare-ups. The examination was not conducted immediately after repetitive use over time, nor was it conducted during a flare-up. The examination is medically consistent with the Veteran's statements describing functional loss during flare-ups. The examiner described functional loss caused by pain in terms of Range of Motion as 0 to 20 degrees, forward flexion; and 0 to 5 degrees, extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation. The examiner noted less movement than normal due to ankylosis, limitation or blocking, adhesions, etc. Straight leg raising test results were positive bilaterally. The examiner noted IVDS of the thoracolumbar spine with no episodes of acute signs and symptoms that required bed rest prescribed by a physician in the prior 12 months. The Veteran used a cane constantly and a walker regularly. The examiner noted that additional conditions were found which are directly due to or related to the service-connected diagnosis (i.e. a progression). The rationale was progression of the service connected DJD has led to lumbar radiculopathy and IVDS due to nerve root impingement. The 2019 examiner noted less movement than normal due to ankylosis, limitation or blocking, adhesions, etc. In addition, at the examination, the Veteran described the impact of flare-ups as "It just aches to a 9/10 and I cannot do anything. And it is sharply stiff, preventing most movement." The Board further notes the Veteran's spinal fusion surgery which by its nature causes permanent immobility of the related vertebrae. The Board notes that the November 2019 VA examiner opined that during a flare up. The Veteran will end up in bed for 1-2 weeks if this occurs. The examiner stated that this can occur once monthly or once every 2 months. The examiner also opined that the Veteran experienced IVDS during the course of the appeal, but the examiner did not provide an exact time frame. The examiner stated that IVDS was likely since there was a bulging disc and lumbar radiculopathy present. In sum, the Board finds that the Veteran's disability has remained consistent during this period of the appeal and an increased rating is warranted. After a review of the record, the Board finds that the medical evidence of record demonstrates that the Veteran's flareups result in incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. After weighing all of the evidence, both positive and negative, the Board finds that the Veteran's disability is best represented by a 60 percent rating. The Board has considered a rating in excess of 60 percent; however, the evidence of record does not show, even when considering the Veteran's pain and flareups, that the Veteran's lumbar spine exhibits unfavorable ankylosis. Based on the foregoing, and resolving all doubt in the Veteran's favor, the Board finds that the Veteran's disability meets the criteria for a 60 percent disability, but not higher, August 14, 2012. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent prior to September 1, 2010 for degenerative arthritis, lumbar spine is remanded. 2. Entitlement to a total disability based upon individual unemployability (TDIU) is remanded. In August 2021, the parties agreed that a remand was warranted in order for the Board to determine whether the November 2019 VA examiner's retrospective opinion substantially complied with the Board's prior remand directives. After a review of the November 2019 VA examination, the Board finds this opinion is inadequate and it did not substantially comply with the prior remand directives. Specifically, the Board notes that the examiner simply opined that "Appellant's range of motion had decreased over the years." The Board further notes that the examiner did not provide an estimation of additional degrees of limited motion caused by functional loss during flare-ups, after repeated use over time, or otherwise prior to August 14, 2012. Accordingly, the Board finds that a remand is necessary in order for the Veteran to attend an additional VA examination that addresses his functional loss during a flareup. The Board acknowledges that the Veteran's claims for increased ratings include a claim for TDIU when it is expressly raised by the Veteran or reasonably raised by the record. After a review of the record, the Board finds that the claim for TDIU has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447. Thus, this issue must be remanded for further development and then adjudication by the RO. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA lumbar spine examination. The examiner must provide a retrospective opinion that addresses the functional loss the Veteran experienced during a flare up for the period prior to September 1, 2010. The retrospective opinion must estimate any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time for the time period prior to September 1, 2010. The examiner should also indicate whether the Veteran has had IVDS at any point during the period remaining on appeal. In providing all of the requested opinions, the examiner should consider the Veteran's competent lay claims regarding the observable symptoms he has experienced. 2. Take all steps necessary to properly develop the Veteran's claim for TDIU. Michael L. Rescan Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debra B. McLoughlin, 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.