Citation Nr: 21007506 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-60 200 DATE: February 9, 2021 ORDER Entitlement to an increased rating in excess of 40 percent for lumbar spine disability prior to September 12, 2020 is denied. Entitlement to an increased rating in excess of 50 percent, but no higher, for lumbar spine disability from September 12, 2020 is granted. FINDINGS OF FACT 1. Prior to September 12, 2020, the Veteran’s lumbar disability presented as moderate symptoms and did not manifest to unfavorable ankylosis of the thoracolumbar spine or entire spine. 2. From September 12, 2020, the overall evidence of record shows the Veteran was additionally limited due to pain and showed symptoms that were more severe in severity. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 40 percent for lumbar spine disability prior to September 12, 2020 have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. § 4.71a, 38 C.F.R. § 4.71a, Diagnostic Code 5237. 2. The criteria for a 50 percent rating, but no higher, for lumbar spine disability from to September 12, 2020 have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. § 4.71a, 38 C.F.R. § 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from January 1995 to September 1996. In February 2020, the Veteran was provided a hearing with the undersigned Veterans Law Judge and a transcript of the proceeding is of record. In April 2020, the claim was brought before the Board and was remanded for further development. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran’s service-connected disability adversely affects his/her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating 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. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Additionally, when 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). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran’s claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Further, 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 contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court 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. See 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 (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Entitlement to an Increased Rating: Lumbar Spine The Veteran’s service-connected lumbar spine disability is currently rated as 40 percent disabling under Diagnostic Code 5237 for lumbosacral strain. Under this diagnostic code, the disability is rated based on the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under DC 5237, 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 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 rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5237. In October 2016, the Veteran was provided a VA examination. The Veteran reported consistent low back pain. The Veteran was able to rise independently from a sitting to standing position without assistance. His gait pattern was slow and rigid with reports of back pain and diffuse joint pains. The Veteran did not distribute his weight on each leg while walking. The Veteran said he was experiencing too much pain in his back and joints to try to attempt to walk on his toes, walk on his heels, or squatting or tandem walk. His sensory motor examination was normal, as well as his reflexes were symmetric. Regarding flare-ups, the Veteran reported low back pain that was a 9 out 10, with 10 being the worst, in intensity when severe. He reported that his back pain is never at zero. He stated that his baseline level of pain a 6 out of 10. He could not describe any specific pain triggers with activity. He reported that it was worse during cold weather. Upon examination, the Veteran’s range of motion (ROM) was forward flexion to 50 degrees, extension to 10 degrees, and bilateral lateral flexion and bilateral lateral rotation to 25 degrees. ROM itself did not contribute to functional loss. Pain noted on examination also did not result in or cause functional loss. There was no evidence of pain on weight bearing or tenderness or pain on palpation. The Veteran was able to perform repetitive testing with at least three repetitions and did not suffer from additional loss, function, or ROM following the repetitions. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability over a period of time or during flare-ups. The Veteran did have guarding and localized tenderness that did not result in abnormal gait or abnormal spinal contour. The Veteran did not have ankylosis or intervertebral disc syndrome (IVDS). The Veteran did not have need for assistive devices. The examiner noted that the Veteran’s lumbosacral arthritis is of mild to moderate severity. ROM during passive, active, and repetitive motions were the same. In October 2018, the Veteran received another VA examination. He reported back pain at all times that shoots up and down his spine. The Veteran reported falling that day before and only being able to walk about 2 blocks before back pain starts. He reported using a cane and an occasional brace. He reported pain with standing, walking, prolonged sitting, bending, and lifting, as well as when he coughs or sneezes. He reported getting some relief with heat on his back or while lying down. His pain is a 7 out of 10 most of the time. He reported falling about once a week from his back pain. The Veteran’s functional impairment was impaired sitting, bending, lifting, standing, and walking. The Veteran’s ROM was forward flexion from 20 to 40 degrees, extension to negative 20 degrees, and bilateral lateral flexion and bilateral lateral rotation to 5 degrees. ROM itself did attribute to functional loss making it difficult for the Veteran to reach his feet for socks or shoes. Pain was noted during rest/non-movement in all ROM. There was objective evidence of pain with weight bearing and tenderness over the lower lumbar spine. The Veteran was not able to perform repetitive testing due to too much pain. The examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. Pain did significantly limit functional ability with repeated use over time with the Veteran describing his pains cause him to be immobilized in bed. The Veteran did have guarding that resulted in abnormal gait or abnormal spinal contour. The examiner explained when standing in a forward flexed posture the Veteran has a left lean. Additional factors contributing to his disability were less movement than normal, disturbance of locomotion, interference with sitting, and interference with standing. The Veteran did not have ankylosis or IVDS. The Veteran did have occasional need for a brace. Most recently, the Veteran was provided a VA examination in September 2020. The Veteran reported moderate symptoms with pain that was a 6 out of 10 and radiates up and down the spine. He reported that the pain was crushing and stabbing-like. The Veteran reported using a cane to ambulate. The Veteran reported flare-ups with pain that goes from a 5 to an 8 and a need to increase his medication. He reported feeling a stabbing and nerve pain all over. He reported it occurs once every 2 to 3 weeks. The Veteran reported functional loss in the form of not being able to bend his back or extend to functional ROM, as well as needing a cane. The Veteran’s ROM was forward flexion to 30 degrees, extension to 5 degrees, bilateral lateral flexion to 15 degrees, and bilateral lateral rotation to 20 degrees. ROM itself did contribute to functional loss. Pain was noted during rest and non-movement. Pain noted on examination was seen in forward flexion. The Veteran had tenderness over the lumbar spine. The Veteran was not able perform repetitive use testing with at least three repetitions due to his fear of pain. The examiner was neither medically consistent or inconsistent with the Veteran’s statements regarding functional loss with repetitive use over time and during flare-ups. Pain did significantly limit the Veteran with repeated use over time. The examiner noted the functional loss in terms of ROM was forward flexion to 20 degrees, extension to 5 degrees, right lateral flexion to 10 degrees, left lateral flexion to 15 degrees, and bilateral lateral rotation to 15 degrees. The Veteran did have guarding that resulted in abnormal gait. The Veteran did not have ankylosis or IVDS. The Veteran did have constant use of a cane. After review of the evidence of record, the Board finds that a rating in excess of 40 percent prior to September 12, 2020 is not warranted. At no time has the Veteran shown ankylosis, favorable or unfavorable, of the thoracolumbar spine or entire spine, even when considering functional impairment. The Veteran also has not been diagnosed with IVDS. Thus, a rating in excess of 40 percent prior to September 12, 2020 is also not warranted. See 38 C.F.R. § 4.71a, DC 5237, 5243. As provided above, 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 contemplated in the relevant criteria when evaluating limitation of motion for joint disabilities. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca at 202. However, the Board notes that there are no medical records of evidence showing severe functional loss due to his lumbar spine disability before September 12, 2020. The Board recognizes the Veteran was noted as being additionally limited due to his pain. However, for the period under consideration, the Veteran did not meet the requirement of having a forward flexion of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine as needed for a 40 percent rating. Thus, any limitation due to his pain was already considered under DeLuca, and the assignment of any higher disability rating in excess of 40 percent prior to September 12, 2020 is not warranted. However, the Board finds that a rating of 50 percent from September 12, 2020 is warranted. Although the Veteran has not been found to have unfavorable ankylosis, from September 12, 2020, the evidence shows he has been found to be additionally limited by his pain, which results in ROM decreased to forward flexion of only 20 degrees. Further, during this period, the Veteran now has constant need for a cane and abnormal gait. The Veteran also showed pain during non-movement and was noted as not being able to bend or extend. Thus, under DeLuca, a rating of 50 percent, but no higher, is warranted, as the evidence indicates that the Veteran’s functional limitations of the lumbar spine more closely represent a severe disability. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board notes that the Veteran has not been found to have unfavorable ankylosis of the entire spine and thus, a rating of 100 percent is not warranted for any period on appeal. See 38 C.F.R. § 4.71a, DC 5237. The Board has also considered neurological impairment of the lumbar spine, but notes that the Veteran has already been separately rated for right lower leg radiculopathy and left lower leg radiculopathy, and that he has no additional neurological impairment other than that for which he has been compensated. In light of the foregoing, the Board concludes that a rating in excess of 40 percent prior to September 12, 2020 is not warranted; however, a rating of 50 percent, but no higher, from September 12, 2020 is warranted. The benefit of the doubt doctrine has been applied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Negron, 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.