Citation Nr: 21007645 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 09-43 563 DATE: February 10, 2021 ORDER Entitlement to an initial rating in excess of 40 percent for degenerative arthritis of the lumbar spine is denied. FINDING OF FACT The preponderance of evidence is against a finding that the Veteran’s degenerative arthritis of the lumbar spine has resulted in unfavorable ankylosis of the entire thoracolumbar spine/entire spine; intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during a 12-month period at any point in the appeal period; or any associated neurological impairment other than left and right lower extremity radiculopathy for which he was awarded service connection on a secondary basis and has not yet appealed the initial rating or effective date assigned. CONCLUSION OF LAW The criteria for an initial rating in excess of 40 percent for degenerative arthritis of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a. REASONS AND BASES FOR FINDING AND CONCLUSION This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, that granted service connection for a lumbar spine disability, currently rated as degenerative arthritis of the lumbar spine. The Veteran, in pertinent part, appealed the initial 10 percent rating assigned for the disability. The Veteran appeared at a hearing before the undersigned in December 2015. A transcript of the hearing is of record. This matter was most recently before the Board in March 2020. At that time, a staged initial rating was assigned for the Veteran’s service-connected lumbar spine disability with it being rated as 10 percent disabling prior to August 15, 2019 and 40 percent disabling thereafter. In March 2020, the Board deemed it necessary to remand the Veteran’s appeal for a retrospective opinion in accordance with Chotta v. Peake, 22 Vet. App. 80 (2008) because the evidence of record suggested the impairment warranting the 40 percent rating may have onset prior to the effective date assigned by the Agency of Original Jurisdiction (AOJ). See Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010). Specifically, the Board asked the newly selected examiner to address the approximate date of onset of the functional impairment assessed by an August 2019 VA examiner that led to the assignment of a 40 percent rating for the Veteran’s service-connected lumbar spine disability effective from the date of the examination. In September 2020, a VA examiner provided the requested opinion and stated the functional impairment assessed during the August 2019 VA examination has at least as likely as not been present throughout the appeal period. The AOJ then granted a 40 percent rating from the effective date of service connection for the disability and returned the issue of entitlement to an initial rating in excess of 40 percent to the Board for further appellate consideration. As a result, the Board finds there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes a September 2020 rating decision granted service connection for left and right lower extremity radiculopathy, secondary to the Veteran’s service-connected lumbar spine disability, with an initial 10 percent rating assigned bilaterally, effective March 12, 2007. The Veteran has not yet appealed the rating or effective date of service connection assigned for left and right lower extremity radiculopathy; therefore, these issues will not be addressed by the Board at this time. If the Veteran desires appellate consideration of the September 2020 rating decision, he is advised to review his rights under the Appeals Modernization Act (AMA), as outlined in the VA Form 20-0998 that accompanied the September 2020 decision. Analysis Under the General Rating Formula for Disease and Injuries of the Spine, a rating in excess of 40 percent requires either unfavorable ankylosis of entire thoracolumbar spine (60 percent rating) or the entire spine (100 percent rating). See 38 C.F.R. § 4.71a. The Veteran has been examined multiple times during the appeal period, to include as recently as September 2020, and there is no evidence of ankylosis in this case. Thus, a rating in excess of 40 percent is not warranted under Diagnostic Code 542 using the General Rating Formula for Disease and Injuries of the Spine. The alternate Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides a 60 percent rating for intervertebral disc syndrome (IVDS) with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. While the Veteran’s most recent examiner in September 2020 reported the Veteran does have IVDS, the examiner noted the Veteran has not had any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. None of the Veteran’s previous examiners found the Veteran had IVDS at the time of their examinations. Treatment records do not include any notation of incapacitating episodes that require bed rest prescribed by a physician and treatment by a physician. Thus, a rating in excess of 40 percent is not warranted under the alternate Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Board acknowledges the General Rating Formula for Disease and Injuries of the Spine also contemplates separate ratings being assigned for associated neurological impairment. See 38 C.F.R. § 4.71a. As previously noted, a September 2020 rating decision granted service connection for left and right lower extremity radiculopathy, secondary to the Veteran’s service-connected lumbar spine disability, with an initial 10 percent rating assigned bilaterally, effective March 12, 2007. The Veteran has not requested appellate review of the September 2020 decision, which was issued in accordance with the AMA. The Veteran’s numerous examinations during the appeal period do not show any other associated neurological impairment, and there is no indication of such impairment in the Veteran’s treatment records. As result, further discussion of additional ratings for associated neurological impairment is not warranted in the context of the Veteran’s appeal of the rating assigned for his service-connected lumbar spine disability. In sum, the Board finds the preponderance of evidence is against a finding that the Veteran’s degenerative arthritis of the lumbar spine has resulted in unfavorable ankylosis of the entire thoracolumbar spine/entire spine; IVDS with incapacitating episodes having a total duration of at least 6 weeks during a 12-month period at any point in the appeal period; or any associated neurological impairment other than left and right lower extremity radiculopathy for which he was awarded service connection on a secondary basis and has not yet appealed the initial rating or effective date assigned. Accordingly, the criteria for an initial rating in excess of 40 percent for degenerative arthritis lumbar spine have not been met, and, to that extent, the Veteran’s appeal is denied. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, 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.