Citation Nr: 21006139 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 13-12 085 DATE: February 3, 2021 ORDER Entitlement to an increased rating in excess of 10 percent for arthritis of the lumbar spine, status post laminectomy and fusions (lumbar spine disability), exclusive of periods of temporary total evaluation, before September 18, 2019, and greater than 20 percent thereafter is denied. FINDING OF FACT 1. The Veteran’s lumbar spine disability is manifest by forward flexion of the thoracolumbar spine 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 prior to September 18, 2019. 2. The Veteran’s lumbar spine disability is manifest by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees and combined range of motion of the thoracolumbar spine not greater than 120 degrees after September 18, 2019. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent prior to September 18, 2019 and greater than 20 percent thereafter for lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5003, 5237, 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from October 1981 to September 1987, from October 1988 to August 1991, and from July 1993 to May 2007. He also had service in a reserve component of the military, to include a period of active duty for training from January 1988 to June 1988. His decorations include the Air Force Commendation Medal with five oak leaf clusters, the Meritorious Service Medal with three oak leaf clusters, and the Global War on Terrorism Service Medal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The issue on appeal was previously before the Board in May 2015 and December 2017, when it was remanded to the RO for additional development. After taking further action, the RO confirmed and continued the prior 10 percent rating (exclusive of periods of temporary total rating) and returned the case to the Board. See April 2019 supplemental statement of the case. In February 2020, the Board again remanded the case to the RO for further development. Specifically, the Board directed the RO to ask the Veteran to identify where he received private treatment and to provide him with a release for that information. The RO sent a letter in March 2020 informing the Veteran of the information that was still needed from him. No response was received. The remand also instructed the RO to provide the Veteran with a new examination, which was completed in September 2020. In that examination, the Veteran reported that he was to undergo another back surgery in November 2020 at the Virginia Spine Institution. To the extent that information may have been gained to his benefit from updated Virginia Spine Institute records, VA made sufficient efforts to obtain the release for private treatment records. The duty to assist is a two-way street, and the Veteran is responsible to assist VA in developing his claims. See Wood v. Derwinski, 1 Vet. App. 190 (1991). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. 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 any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 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). Entitlement to an increased rating in excess of 10 percent for arthritis of the lumbar spine, status post laminectomy and fusions (lumbar spine disability), exclusive of periods of temporary total evaluation, before September 18, 2019 and greater than 20 percent thereafter. The Veteran asserts that his spinal disability has worsened. Excluding the periods of temporary total evaluation, there is no probative evidence however to suggest that the Veteran’s disability should have been rated higher than 10 percent before September 18, 2019, or greater than 20 percent thereafter. He received VA examinations in August 2010, September 2018, and September 2020. Separate ratings may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran currently has staged ratings of 10 percent prior to February 19, 2019, and 20 percent thereafter. Lumbosacral strain can be found in 38 C.F.R. § 4.71a under diagnostic code 5237. The relevant rating criteria is as follows: 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. [20 percent] 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. [10 percent] 38 C.F.R. § 4.71a. The Veteran filed his increased rating claim in June 2010, making his claim a non-initial increased rating claim. As a result, the relevant time period for consideration is one year before the claim was filed. Hart, 21 Vet. App. at 509. During the period on appeal the Veteran worked as a government employee and initially could work without restriction. See January 2012 Private Treatment Records. As an office manager, the Veteran missed less than five weeks in 2018 and less than one to two weeks in 2020. See VA Examinations. The Veteran’s first VA examination during the appeal period took place in August 2010. His range of motion was within normal limits initially and after repetitive use testing. His flexion decreased to 60 degrees due to pain and his extension, whereas his right and left lateral flexion and right and left rotation were all 20 degrees. Although the Veteran reported having pain in his left leg, the examination did not reveal any evidence of radiculopathy on movement. The Veteran did not have muscle spasms, guarding of movement, weakness, atrophy, ankylosis, or bladder/bowel problems. His muscle tone and musculature were normal. Joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. This evaluation clearly places the Veteran within the 10 percent rating criteria. It was only due to pain on motion that the Veteran’s range of motion decreased and was within the rating criteria. He did not have accompanying neurological abnormalities or bowel problems, and he was not diagnosed with intervertebral disc syndrome (IVDS). The Veteran received treatment for his spine disability between VA examinations. He sought treatment for his lower back pain in July 2010, his gait was normal, his bending was symmetrical, and mild degenerative changes were noted. See Private Treatment Records. He received cortisone injections to treat his pain with positive results. Id. The Veteran was still active at this time, exercising, stretching, and reported pain after activity. Id. Imaging from January 2012 showed Lumbar spinal spondylosis and stenosis as well as degenerative disc bulging. Radiculopathy was also present. This is also when the Veteran sought treatment from the Virginia Spine Institute and was diagnosed with instability with degenerative scoliosis. Private treatment records confirm that the Veteran underwent surgery in March 2012. Excluding periods of total disability, the Veteran’s disability manifested within the 10 percent rating criteria at this time. Private medical records support the Veteran’s 100 percent disability rating effective from February 21, 2018 until March 31, 2018, and ten percent thereafter. A VA examination in September 2018 where he had a forward flexion of 80 and a total range of motion of 215. This did not cause a functional loss. Pain was noted during the exam and it did cause a function loss; however, it could not be described in terms of range of motion. His muscle strength was normal. Radiculopathy, ankylosis, neurological abnormalities, and IVDS were not present. An October 2019 letter from the Virginia Spine Institute states that the Veteran recently underwent spinal surgery. See Operative Report. He again appropriately had a 100 percent rating from August 21, 2019, the date of the surgery and then went back to the prior 10 percent rating after the appropriate period of time on October 1, 2019. There are no medical records, VA examinations, or other objective medical evidence prior to September 18, 2020, excluding the periods of temporary total evaluation, that would place the Veteran in the 20 percent rating category. The Board notes that he experienced pain during this period; however, he was able to exercise, stretch, and function as noted in his private treatment records. His pain was managed, and his decreased range of motion caused by pain was compensated with his 10 percent rating. The Veteran’s most recent VA examination took place in September 2020 where his forward flexion of the thoracolumbar spine was 50 degrees and the total range of motion for the thoracolumbar spine was 150 degrees. This places the Veteran within the 20 percent rating criteria as of the day of the examination. Pain was noted on exam, but the examiner found that it did not further impact the Veteran’s range of motion. While there was evidence of pain with weight bearing, there was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. There was also no additional functional loss after repetitive use testing. Pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time and was expressed in range of motion with a forward flexion of 40 degrees and a total range of motion of 115. Again, the range of motion even when functionally limited to the factors above, squarely places the Veteran’s low back disability squarely in the 20 percent rating criteria. The examination was noted to be medically consistent with the Veteran’s reports of flare-ups and no further limitation was noted. Guarding and muscle spasms were not found, and muscle strength was normal. Atrophy, radiculopathy, and ankylosis were not present. Neurological abnormalities were not noted, and the Veteran was negative for IVDS. He has never experienced gastrointestinal issues or neurological abnormalities, muscle atrophy, ankylosis, or IVDS as a result of his lumbar spine disability. As a result, his non-initial increased rating claim is denied. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. A. Johnston, 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.