Citation Nr: 21005829 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 11-09 165 DATE: February 2, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for lumbar spine degenerative disc disease prior to October 5, 2014, is denied. FINDING OF FACT Prior to October 5, 2014, the Veteran’s lumbar spine degenerative disc disease was manifested by pain and more nearly approximated by limitation of forward flexion greater than 60 degrees but not greater than 85 degrees and combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 10 percent for lumbar spine degenerative disc disease prior to October 5, 2014, have not been met. 38 U.S.C. § 1101, 1155, 5107 (2012); 38 C.F.R. § 4.1, 4.2, 4.3, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237-5243 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1984 to May 2004. This matter comes to the Board of Veterans’ Appeals (Board) from an August 2010 rating decision which, in pertinent part, continued a 10 percent evaluation for lumbar spine degenerative disc disease. In November 2011, the Veteran testified before a Veterans Law Judge (VLJ) at a Board videoconference hearing. A copy of the transcript is of record. In January 2013 and June 2015, the Board remanded the matter for further development, to include obtaining a new VA examination. In a September 2017 rating decision, the RO granted an increased 40 percent evaluation for the Veteran’s lumbar spine degenerative disc disease, effective October 5, 2015. The RO also granted service connection for left and right lower extremity sciatic nerve radiculopathy, each evaluated at 20 percent disabling, effective October 5, 2015, as part of his appeal for an increased rating for his lumbar spine disability. In October 2017, the Veteran was notified that the VLJ during his November 2011 Board hearing was no longer with the Board. The Veteran elected to have another Board hearing. In July 2018, the Veteran testified before the undersigned VLJ at a Travel Board hearing. A copy of the transcript is of record. During the Board hearing, the Veteran indicated that he was satisfied with his lumbar spine disability rating from October 5, 2015, and only wished to proceed with the increased rating claim prior to October 5, 2015. He also testified that he had neurological difficulties in his lower extremities prior to the assigned effective date of October 5, 2015. In a September 2018 decision, the Board denied entitlement to a disability rating in excess of 10 percent for lumbar spine degenerative disc disease prior to October 5, 2014; granted an increased 20 percent evaluation for the lumbar spine disability from October 5, 2014 to June 22, 2015; and granted an increased 40 percent evaluation for the lumbar spine disability from June 22, 2015 to October 5, 2015. The Board remanded the issues of entitlement to a compensable rating for bilateral lower extremity radiculopathy prior to October 5, 2015, for the issuance of a supplemental statement of the case (SSOC). The Veteran appealed the denial of a rating in excess of 10 percent for lumbar spine degenerative disc disease prior to October 5, 2014 to the U.S. Court of Appeals for Veterans Claims (Court), and in a May 2019 order, the Court granted the parties’ Joint Motion for Partial Remand (Joint Motion), vacated the Board’s decision as it pertained to the denial of a disability rating in excess of 10 percent for a lumbar spine disability prior to October 4, 2014, and remanded the matter back to the Board for development consistent with the Joint Motion. In October 2019, the Board granted a separate 10 percent evaluation for left lower extremity radiculopathy, effective November 29, 2011, and a separate 10 percent evaluation for right lower extremity radiculopathy, effective November 19, 2009, and remanded the claim for a disability rating in excess of 10 percent for lumbar spine degenerative disc disease prior to October 5, 2014 for further development, to include obtaining a retrospective VA opinion as to the severity of the Veteran’s lumbar spine disability prior to October 5, 2014. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Within that context, VA must assess the level of disability from the date of initial application and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a “staged rating.” See Fenderson v. West, 12 Vet. App. 119 (1999). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The standard of proof to be applied in decisions on claims for veteran’s benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to a disability rating in excess of 10 percent for lumbar spine degenerative disc disease prior to October 5, 2014. The Veteran contends that an increased rating is warranted for his lumbar spine disability prior to October 5, 2014. The Veteran is currently assigned a 10 percent rating prior to October 5, 2014. The Veteran’s thoracolumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 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 warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. The criteria under the General Rating Formula are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. As it pertains to the relevant temporal period on appeal, the focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Here, the Veteran filed his increased rating claim on November 19, 2009. As such, the Board has considered the Veteran’s claim from November 19, 2008 to the present. Turning to the evidence of record, a December 2008 treatment record establishing care with the VA reflects that the Veteran reported chronic back pain. While the Veteran’s treating clinician noted other musculoskeletal defects upon examination, there was no indication of a lumbar spine disability and the clinician reported all other joints were intact. The clinician provided a diagnosis of low back pain and to continue ibuprofen. A June 2009 VA treatment record reflects the Veteran reported he was limited in activities due to chronic back pain and that he took ibuprofen about twice a day for pain. An August 2009 VA treatment record reflects the Veteran visited the emergency room for onset of lumbar back pain several hours previously. He denied trauma but reported the pain increased with movement. His back pain was reproduceable with movement and his spine was tender to palpation in the paraspinal musculature on the left side. The Veteran was diagnosed with lumbar strain, prescribed pain medication and Flexeril, and advised on the importance of stretching exercises. A March 2010 VA examination report reflects the Veteran reported having intermittent back pain. He reported seeking emergency treatment for acute back pain the summer before but denied having flare-ups since. The Veteran reported stiffness, spasms, and intermittent, moderate, aching pain lasting three to seven days, once or twice a year. Twisting and lifting precipitated flare-ups and rest, ibuprofen, and muscle relaxers relieved the pain. The Veteran reported having to stop and rest and that he limited walking to short distances during flare-ups. The Veteran denied incapacitating episodes or use of assistive devices. Upon examination, posture, gait, and muscle strength were normal. Flexion was to 70 degrees, extension to 30 degrees, left lateral flexion to 35 degrees, and left lateral rotation, right lateral flexion, and right lateral rotation were to 30 degrees each. There was no objective evidence of pain on active range of motion and no additional limitation of range of motion after repetitive use. The examiner indicated that while range of motion was reduced, forward flexion was mildly impeded by a large, round abdomen rather than due to his lumbar spine disability. Finally, the examiner indicated the Veteran’s lumbar spine disability significantly affected his occupation in that he would have low back pain with lifting, would mildly affect chores and shopping, and would prevent participation in sports such as bowling. Associated imaging studies revealed mild rotoscoliosis with degenerative changes and moderate degenerative disc disease as L3-4. During a November 2011 Board hearing, the Veteran stated that he had not sought treatment such as physical therapy for his back due to cost, but that he had visited the emergency room once, was on ibuprofen for pain, had difficulty bending over to pick up objects, and avoided certain activities. He further reported he had only taken a few days off of work for his back because he did not want to lose his employment. A September 2014 VA treatment record during a routine check-up reflects that the Veteran reported having constant back pain he rated at a 2 to 3 out of 10. In a September 2020 VA opinion, the examiner explained that a retrospective opinion as to passive range of motion during the March 2010 VA examination was not possible, as it is common knowledge in medical literature that it is impractical to do passive motion of the lumbar spine. Rather, weight-bearing will typically increase the load on the lumbar spine leading to decreased motion. As to a retrospective opinion on additional limitation of range of motion during flare-ups as reported on the March 2010 VA examination, the examiner indicated that while the Veteran reported additional symptomatology during flare-ups, any opinion would be speculative and unusual to give due to the passage of time. The examiner indicated that the best estimate would be those ranges of motion as reported in the September 2020 examination report. The associated examination report revealed ranges of motion during flare-ups of flexion to 35 degrees, extension, right lateral flexion, and left lateral flexion to 20 degrees each, and right and left lateral rotation to 30 degrees each. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran’s lumbar spine degenerative disc disease prior to October 5, 2014. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain and pain during flare-ups. However, even considering the Veteran’s lay reports of symptoms and noted functional loss such as difficulty lifting objects and avoidance of certain activities, the degree of additional limitation reflected by the statements that he had increased pain with flare-ups once or twice a year would not result in limitation of motion more nearly approximating the criteria for a rating higher than 10 percent, i.e., 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. Rather, the March 2010 VA examination report reflects that the Veteran reported functional limitations of increased pain and avoidance of walking long distances during flare-ups. He did not report a decrease in range of motion and the March 2010 VA examiner indicated that there was no additional loss of range of motion after repetitive use. Additionally, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The Board acknowledges that the March 2010 VA examination report does not indicate whether testing was done for pain on both active and passive motion, in weight-bearing and nonweight-bearing. While the Board remanded the issue for a retrospective opinion, the September 2020 VA examiner indicated that it was impractical to measure passive motion and nonweight-bearing. The Board further acknowledges that the September 2020 VA examiner indicated that the best estimation of additional loss of range of motion during flare-ups in March 2010 would be those ranges of motion as reported in the September 2020 VA examination report. Although the September 2020 VA examination report contains limitation of flexion during flare-ups that would be consistent with a 20 percent rating, the combined range of motion of the thoracolumbar spine remained greater than 120 degrees, symptomatology consistent with a 10 percent rating. Furthermore, in March 2010, the Veteran reported that his flare-ups only lasted three to seven days and occurred only once or twice a year. Thus, given the Veteran’s description of the frequency, duration, and severity of his lumbar spine during flare-ups, the Board finds the overall disability picture of the Veteran’s lumbar spine disability prior to October 5, 2014, more closely resembles the symptomatology contemplated by a 10 percent rating and that a higher rating based on any additional limitation of motion during flare-ups lasting, at most, one to two weeks per year, is not warranted. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Regarding any associated neurological impairment, the Veteran has been granted separate ratings for bilateral lower extremity radiculopathy during this period and these ratings were most recently adjudicated by the Board in October 2019. The Veteran did not request reconsideration of or appeal the Board’s October 2019 decision; thus, the Board’s October 2019 decision is final, and any neurological impairment due to bilateral lower extremity radiculopathy is not before the Board. In conclusion, the Board finds the symptomatology of the Veteran’s lumbar spine degenerative disc disease prior to October 5, 2014 is more nearly approximated by the criteria for a 10 percent rating. As the preponderance of the evidence is against the claim, the claim is denied. See 38 C.F.R. § 4.3; 4.71a, DC 5237. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Owen, 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.