Citation Nr: 21074105 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 16-13 339 DATE: December 14, 2021 ORDER Entitlement to an initial disability rating of 40 percent for a lumbar disability prior to July 13, 2021, is granted. Entitlement to a rating in excess of 40 percent for a lumbar disability for the entire period on appeal is denied. FINDING OF FACT For the entire appeal period, the Veteran's lumbar disability has resulted in forward flexion of the thoracolumbar spine of 30 degrees or less, but has not been characterized by unfavorable ankylosis, or the functional equivalent, of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. For the period prior to July 13, 2021, the criteria for a rating of 40 percent for a lumbar disability appeal have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242. 2. For the entire appeal period, the criteria for a rating in excess of 40 percent for a lumbar disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active service in the U.S. Coast Guard from June 2010 to June 2013. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ), which granted service connection for a thoracolumbar strain under Diagnostic Code 5237 and assigned a 10 percent rating effective June 4, 2013. This matter was previously before the Board in May 2020 and was remanded for development. The Board finds that there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). During the pendency of the appeal, a September 2021 rating decision recharacterized the Veteran's disability as degenerative disc disease with degenerative arthritis and thoracolumbar strain under Diagnostic Code 5242 and increased his rating to 40 percent effective July 13, 2021. As higher ratings are potentially available, the issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). I. Increased Rating Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical, as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505. 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. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in 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 these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate 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. §§ 4.10, 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flareups. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 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). Painful motion is an important factor of disability, and it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id.; Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (both citing to 38 C.F.R. § 4.40). 1. Entitlement to an initial disability rating of 40 percent for a lumbar disability The Veteran's lumbar spine disability is evaluated under Diagnostic Code 5237 with a 10 percent effective June 4, 2013 and under Diagnostic Code 5242 with a rating of 40 percent effective July 13, 2021. Diagnostic Codes 5237 and 5242 indicate that the General Rating Formula for Diseases and Injuries of the Spine should be used to rate the disability. The General Rating Formula provides for a 10 percent evaluation when a back disability results in 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. A back disability warrants a 20 percent rating where there is 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 is not greater than 120 degrees, or there is 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 favorable ankylosis of the entire thoracolumbar spine or forward flexion of the thoracolumbar spine of 30 degrees or less. The only criterion which warrants an evaluation in excess of 40 percent for limitation of motion of the thoracolumbar spine is where there is unfavorable ankylosis of the thoracic spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating, and unfavorable ankyloses of the entire spine warrants a 100 percent rating. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated 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. 38 C.F.R. § 4.71a, General Rating Formal, Note (2) and Plate V. Moreover, 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 neurological symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula, Note (5). In April 2021, the U.S. Court of Appeals for Veterans Claims (Court) held that the requirement of ankylosis in the General Rating Formula for Injuries and Diseases of the Spine can be met with evidence of the functional equivalent of ankylosis (i.e. functional immobility of the joint) during a flare-up. Chavis v. McDonough, 34 Vet. App. 1 (2021). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent evaluation is warranted for incapacitating episodes having a total duration of at least one week, but less than 2 weeks during the past 12 months. A 20 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 warranted 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 of that segment. Id., Note (2). Factual Background Turning to the evidence, the Veteran was seen by an orthopedic physician for lumbar pain in May 2013. He reported having only mild improvement with physical therapy. He denied having any radiation or weakness into the lower legs and he indicated that he is continuing to work light duty. At this time, magnetic resonance imaging (MRI) revealed the presence of mild facet arthropathy of the lumbar spine. However, the Veteran exhibited normal functioning on examination. The Veteran was advised to continue with physical therapy and prescribed a trial of anti-inflammatory diclofenac. The Veteran was provided a VA examination in October 2013 to assess the nature and severity of his lumbar disability. The Veteran reported that he injured his back during service in March 2013. He elaborated that his pain has worsened since the injury. He indicated that he engaged in physical therapy, but it helped only slightly. The examiner noted that x-rays were performed at the time of injury, but they were negative with the exception of scoliosis. Accordingly, the examiner provided a diagnosis of lumbar strain. Upon range of motion testing, the Veteran exhibited forward flexion to 90 degrees or greater and extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation to 30 degrees or greater. Pain was present with motion and the examiner concluded that pain on movement contributed to functional loss. With respect to repetitive use, the examiner concluded that the Veteran does not have any additional limitation following testing. With respect to flare ups, the Veteran reported that he experiences stiffness with bending and is uncomfortable standing, sitting, or lying down. The examiner concluded that pain, weakness, fatigability, and incoordination cause additional functional limitation during flare ups and with repeated use over time. However, the examiner indicated that additional limitation in terms of range of motion loss could not be estimated because it is dependent on the type of activity performed and the severity of pain experienced at the time. The examiner further concluded that the Veteran's lumbar disability impacted his ability to work, causing difficulty with prolonged standing and walking. Otherwise, the Veteran did not exhibit localized tenderness, pain to palpation, guarding, muscle spasms, or muscle atrophy on examination. He maintained normal strength, reflexes, and sensation of the lower extremities. Straight leg raise testing was negative and there were no signs of radiculopathy or other neurological abnormalities. The examiner concluded that the Veteran does not have IVDS or require an assistive device. On January 12, 2015, the Veteran reported in a Notice of Disagreement that his back pain is caused by arthritis and not muscle strain. He further reported that experiences frequent sharp pain shooting up his spine. He elaborated that he cannot get out of bed some days, and on most days, it takes a lot more effort. He also reported that he cannot perform his job to the best of his ability, and he cannot play with his three-year-old brother. Consistent with the Veteran's reports, x-rays performed in August 2014 showed the presence of degenerative disc space changes at T11-T12 and mild bilateral facet arthrosis at L5-S1. In March 2016, the Veteran reported that his pain was much worse and none of his previous medications have worked. He reported again that there were some days that he could not get out of bed and he noted pain with sitting, standing, bending, and lying down. In September 2016, the Veteran was seen by primary care for his lumbar complaints, and he was diagnosed with chronic myofascial pain related to degeneration of the lumbar spine. On examination, the Veteran's range of motion was intact and there were no signs of point tenderness or deformities, but it was noted that his pain was not fully controlled. He was referred to physical therapy and prescribed tramadol and lidocaine for his pain. In June 2017, the Veteran underwent a physical therapy consultation. At this time, he reported increased pain with his job duties and stress, and he indicated that nothing relieves his pain. On examination, forward flexion and extension was limited by 50 percent. Side bending and rotation were within normal limits and straight leg raise testing was negative. Diagnostic imaging performed at this time revealed the presence of mild posterior facet arthrosis and straightening of the normal lumbar lordosis, which may be related to paraspinal muscle tension and/or spasm. In July 2021, the Veteran submitted a buddy statement in which his employer noted that the Veteran's job performance is significantly impacted by his back pain. The Veteran's employer noted that the job often requires lifting heavy objects, moving equipment, bending frequently, and working at a rapid pace. She elaborated that they often have to redeploy other partners to accommodate the Veteran's physical inability to effectively perform the requirements of his job. The Veteran also submitted a buddy statement from his wife in July 2021. She reported that the Veteran's lumbar disability affects his day-to-day life. She elaborated that the Veteran cannot hold his daughter or run and play with her. She also reported that working fulltime is killing his body and that he is unable to stand up straight after work. She further reported that the Veteran cannot feel his legs and can barely walk even to the kitchen. The Veteran was also provided another VA examination in July 2021. At this time, the examiner provided a diagnosis of degenerative arthritis, thoracolumbar strain, and bilateral lower extremity radiculopathy. Upon range of motion testing, the Veteran exhibited forward flexion to 40 degrees and extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation to 10 degrees. Pain was present with active and passive motion, but not with weight-bearing or non-weight bearing, and the examiner concluded that pain contributed to functional loss with activities such as lifting weight, bending, and squatting. The Veteran was able to perform repetitive use testing with at least three repetitions and without additional functional loss. He was not being examined immediately after repetitive use over time, but the examiner concluded that pain, fatigability, and lack of endurance significantly limited functional ability with repeated use over time. The examiner further estimated additional range of motion loss with forward flexion limited to 30 degrees. With respect to flare ups, the Veteran reported having severe flare ups several times a day that last 20 minutes at a time. He elaborated that they are precipitated by anything and alleviated by rest. As with repeated use, the examiner noted that the Veteran was not being examined during a flare up. However, she concluded that pain, weakness, and fatigability, significantly limited functional ability during flare ups. She further estimated additional range of motion loss with forward flexion limited to 30 degrees. Otherwise, the Veteran did not exhibit localized tenderness, pain to palpation, crepitus, guarding, muscle spasms, muscle atrophy on examination. He maintained normal strength, reflexes, and sensation of the lower extremities. Straight leg raise testing was negative and he did not report using an assistive device. The examiner noted that the Veteran does not have ankylosis or IVDS and does not require an assistive device. However, the examiner noted the presence of radiculopathy with moderate intermittent pain, paresthesias and/or dysesthesias, numbness, and involvement of the sciatic nerve root bilaterally. Finally, the examiner concluded that the Veteran's lumbar disability affects his ability to perform occupational tasks, including lifting over 20 pounds, bending, and squatting. In August 2021, the Veteran returned for treatment for lumbar pain. At this time, forward flexion was limited due to pain. Otherwise, he exhibited a normal gait, negative straight leg raise testing, and full strength in all extremities. The Veteran was referred for additional x-rays and physical therapy at this time. Analysis Based on the foregoing, the Board finds that the Veteran's back disability most closely approximates the 40 percent rating criteria beginning on June 4, 2013. In July 2021, the VA examiner concluded that flare ups and repetitive use over time limit the Veteran's functional ability and estimated that his forward flexion would be limited to 30 degrees with both. From the medical evidence of record, it is reasonable to conclude that limitation at this level was present for the entire appeal period. The Veteran has consistently reported difficulty managing lumbar pain, despite being prescribed numerous pain medications and undergoing physical therapy. For example, the Veteran complained in January 2015 of frequent sharp pain shooting up his spine and indicated that there are some days when he cannot get out of bed. He also reported that he could not perform his job to the best of his ability or play with his three-year-old brother. Additionally, he reported in March 2016 that his pain was much worse and none of his previous medications have worked. He reported again that there are days when he cannot get out of bed due to pain. These reports are consistent with statements submitted by the Veteran's employer and wife in July 2021. The Veteran's reports are also consistent with the medical record. The October 2013 VA examiner concluded that pain, weakness, fatigability, and/or incoordination caused additional functional limitation. While the examiner did not provide an estimate in terms of range of motion loss, he noted that the Veteran's limitation was dependent on the type of activity performed and the severity of pain experienced. Additionally, the Veteran was diagnosed with myofascial pain syndrome related to degeneration of the lumbar spine in September 2016. Although he exhibited normal functioning on examination, his doctor noted that his pain was not fully controlled. Furthermore, his range of motion was limited by 50 percent when he sought physical therapy again in June 2017. Based on the Veteran's consistent reports of pain and functional limitation, considered in combination with his diagnoses and clinical findings in the medical records, the Board finds that his range of motion most closely approximates 30 degrees forward flexion for the entire appeal period. Thus, a 40 percent rating is warranted beginning on June 4, 2013. However, a rating in excess of 40 percent is not warranted. A rating higher than 40 percent is only warranted when there is unfavorable ankylosis of the entire thoracolumbar spine that results in one of the additional symptoms set forth in Note 5 under the General Rating Formula. Here, there is no evidence that the Veteran satisfies these criteria. Neither VA examinations, lay statements, nor the Veteran's treatment records show symptoms that approximate the thoracolumbar spine fixed in a bent position or other symptoms such as limited line of vision and restricted opening the mouth, impaired breathing, or gastrointestinal problems. The VA examinations do not show evidence of ankylosis, abnormal gait, abnormal contour of the spine, or use of an assistive device for ambulation. While the Veteran has difficulty sitting, standing, or walking for prolonged periods, bending repeatedly, and lifting heavy objects, these restrictions are adequately compensated by the 40 percent rating. As the Veteran has some range of motion, although significantly limited due to pain, he does not exhibit unfavorable ankylosis or the functional equivalent of the entire thoracolumbar spine. The Board acknowledges that the October 2013 VA examination does not adequately consider the Veteran's functional limitations on passive and active range of motion, range of motion on weight bearing and non-weight bearing, and during flare-ups. However, the July 2021 VA examination does address these criteria. Accordingly, as the July 2021 VA examination is adequate, and there is no indication that the Veteran's condition has improved as of the July 2021 examination, basing the Veteran's rating on the most recent examination eliminates the need for a retrospective opinion. Additionally, the Board notes that the Veteran has already been awarded separate evaluations for bilateral lower and upper extremity radiculopathy, and the Veteran has not appealed the disability ratings assigned. Thus, this issue is not before the Board at this time. The Board also notes that effective February 7, 2021, the spine regulations were amended to state that Diagnostic Code 5243 governing IVDS should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root; and that Diagnostic Code 5242 should apply to all other disc diagnoses. See 85 Fed. Reg. 76462 (Nov. 30, 2020) (effective 2/7/2021). The Board notes that this change does not impact the evaluation in this case as the Veteran does not have IVDS with evidence of incapacitating episodes that would warrant a compensable rating under Diagnostic Code 5243. In sum, the Board finds that a disability rating of 40 percent rating, but no higher, for the entire appeal period is warranted. Additionally, while the Veteran contends that his back pain makes it difficult to work, this is not the same as being unable to sustain gainful employment. Therefore, the Board finds that entitlement to a total disability rating based on individual unemployability (TDIU) has not been raised. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Beech, 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.