Citation Nr: 21007461 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 15-14 577 DATE: February 9, 2021 ORDER Entitlement to a disability rating of 40 percent for degenerative joint disease of the lumbar spine (back disability) prior to February 6, 2015 is granted. Entitlement to a disability rating in excess of 40 percent for degenerative joint disease of the lumbar spine (back disability) is denied. FINDING OF FACT 1. The Veteran’s back disability is productive of pain, flare ups, abnormal range of motion, and functional loss throughout the appeal period. 2. The Veteran does not experience unfavorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating of 40 percent for degenerative joint disease of the lumbar spine (back disability) prior to February 6, 2015 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242 (2018). 2. The criteria for entitlement to a disability rating in excess of 40 percent for degenerative joint disease of the lumbar spine (back disability) have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from April 2004 to August 2006, to include combat service in Iraq. Commendations include the Purple Heart Medal and Combat Infantryman Badge. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2013 and September 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In May 2015, the Veteran requested a hearing before a Veterans Law Judge, but in July 2015, he withdrew his hearing request. These matters were remanded by the Board in November 2018 for additional development. In its November 2018 decision, the Board granted a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) for the period prior to December 16, 2013. In a June 2020 rating decision, TDIU was granted, effective April 17, 2012, the date VA received the Veteran’s claim for TDIU. As the effective date of April 17, 2012 is the date of receipt of the Veteran’s claim for TDIU and his claim for an increased rating for his service-connected back condition, the Board finds that the Veteran has been granted individual unemployability throughout the entire appeal and the issue is not before the Board. C.f. Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Moreover, regulations require that where there is a question as to which of two evaluations is to 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. 38 C.F.R. § 4.7. When rating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating based on functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, to include during flare-ups and with repeated use, when those factors are not contemplated in the relevant rating criteria. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. Limitation-of-motion determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca, 8 Vet. App. at 207. By itself, pain throughout a joint’s range of motion does not constitute functional loss, but if there is additional pain, the examiner must address any additional loss of motion due to the DeLuca factors. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). If a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). A VA examination of the joints must, wherever possible, include range of motion testing for pain on active motion, passive motion, weight-bearing, non-weight-bearing, and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 16970 (2016); 38 C.F.R. § 4.59. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that although a VA examination need not be conducted during a flare-up to be adequate for assessing the extent of additional functional loss during a flare-up, an examiner must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veteran and offer an opinion based on an estimate derived from information procured from relevant sources, including the lay statements of the Veteran. Id. at 34-35. 1. Entitlement to a disability rating of 40 percent for degenerative joint disease of the lumbar spine (back disability) prior to February 6, 2015. 2. Entitlement to a disability rating in excess of 40 percent for degenerative joint disease of the lumbar spine (back disability). The Veteran’s back disability is rated at 20 percent prior to February 6, 2015 and rated at 40 percent beginning February 6, 2015 under DC 5242. Under the general rating formula for diseases and injuries of the spine, a 20 percent rating requires that the condition be manifested by 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 requires unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Higher ratings are warranted where there is ankylosis of the entire spine. The Board finds that a rating of 40 percent for the Veteran’s back disability is warranted throughout the appeal. In March 2013, the Social Security Administration (SSA) found that the Veteran is disabled due, in part, to his service-connected back disability. The SSA’s report includes a function report from the Veteran’s wife dated April 2014. In the report, the Veteran’s wife described the Veteran’s disabilities saying that he is always in pain and cannot sleep when he is hurting. She noted that the Veteran cannot bend to put on his clothes, he needs help in the shower, and is unsteady while standing. The Veteran’s wife also noted that the Veteran cannot squat, bend, kneel, climb stairs, or stand for longer than 2-3 minutes before losing his balance, and he can only walk short distances with the use of a cane. The medical evidence shows that the Veteran has continuously reported flare-ups in his back and intermittent severe pain that limits his range of motion and causes functional loss. See VA Examination, October 2012, June 2014, and February 2015. At the October 2012 examination, the Veteran described his back pain as both sharp and dull. He reported that the dull pain is constant, the sharp pain is intermittent, and his pain is aggravated with any movement. The examiner noted forward flexion at 0 to 90 degrees (normal forward flexion is 0 to 90 degrees). Functional loss was noted with pain on movement and interference with sitting, standing, and/or weightbearing. At the June 2014 examination, the Veteran reported that his low back disability can be very painful and stiff. He reported flare ups that require trips to the emergency room for treatment about twice a year. When he has these flare ups, the Veteran stated that he is unable to leave the house or function. The examiner recorded the Veteran’s forward flexion of his back at 40 degrees for forward flexion and noted muscle spasms and guarding. Contributing factors to functional loss noted are less movement than normal, weakened movement, excess fatigability, pain on movement, disturbance of locomotion, interference with sitting, standing and/or weight bearing, and lack of endurance. The examiner indicated that the Veteran would have additional limitation when his back is used repeatedly over a period of time manifested primarily by pain and difficulty continuing back movement. At the February 2015 examination, the examiner noted forward flexion at 0 to 25 with pain causing functional loss. The examiner noted muscle spasm, localized tenderness, and guarding, with guarding resulting in abnormal gait or abnormal spinal contour. During the October 2020 examination, the Veteran reported persistent pain and stiffness with soreness affecting “everything.” He reported that he experiences flare ups daily and they can be moderate to severe in intensity and last all day. The examiner noted forward flexion at 0 to 70 degrees with pain. The October 2012, June 2014, and February 2015 VA examinations are not compliant with the decisions in Correia and Sharp. However, a discussion of these examinations is helpful in the instant case as they contain the Veteran’s reports of flare ups and pain with movement as well as some range of motion measurements. The Board acknowledges that the Veteran’s limitation of motion noted on the examinations have been variable throughout the appeal. However, the Veteran has continued to report pain and functional loss and the Board finds the Veteran’s reports of the onset and continuation of symptoms of his back disability to be competent and credible. See 38 C.F.R. § 3.159(a); see also Layno v. Brown, 6 Vet. App. 465 (1994) (noting that a veteran is competent to report on that of which he or she has personal knowledge). Further, the Veteran’s wife’s statements within the SSA’s report corroborate the Veteran’s description of the severity of his disability. Thus, when considering the medical and lay evidence of record, the Board finds that the Veteran’s back disability more nearly approximates the criteria for a 40 percent rating throughout the appeal. To receive a higher evaluation, the evidence must show unfavorable ankylosis of the entire thoracolumbar spine. The evidence does not show, nor does the Veteran contend, that he has had ankylosis of the thoracolumbar spine at any time during this stage of the appeal. Therefore, a rating in excess of 40 percent for the Veteran’s back disability is not warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.