Citation Nr: 21007649 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 17-24 917 DATE: February 10, 2021 ORDER An initial disability rating of 40 percent, but no higher, for degenerative disc disease of the lumbar spine status post fusion (lumbar spine disability), for the period prior to October 1, 2013, is granted. Service connection for radiculopathy of the left lower extremity, secondary to service-connected degenerative disc disease of the lumbar spine status post fusion (lumbar spine disability), is granted. FINDINGS OF FACT 1. Prior to October 1, 2013, the Veteran’s lumbar spine disability was manifested by forward flexion of the thoracolumbar spine limited to 30 degrees or less, when considering additional functional loss due to flare-ups and repeated use over time; however, there is no evidence of ankylosis of the thoracolumbar spine at any point during the period on appeal. 2. The Veteran's radiculopathy of the left lower extremity is at least as likely as not etiologically related to her service-connected lumbar spine disability. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 40 percent, but no higher, for the service-connected degenerative disc disease of the lumbar spine status post fusion for the period prior to October 1, 2013 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5237-5242. 2. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for left lower extremity lumbar radiculopathy, as secondary to service-connected lumbar spine disability, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1980 to November 1981, from November 1991 to February 1992, from January 2005 to January 2006, and from June 2006 to May 2009. The Veteran also served on inactive duty in the Reserves. This appeal comes before the Board of Veterans’ Appeals (Board) from a September 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for a lumbar spine disability and assigned a 10 percent rating, effective May 20, 2009. In a July 2011 rating decision, the RO reconsidered, but denied a higher initial rating. The Veteran’s notice of disagreement (NOD) was received in July 2012. In a March 2017 rating decision, the RO assigned a 20 percent rating, effective January 21, 2014. The RO issued the statement of the case (SOC) in March 2017, and the Veteran’s VA Form 9, substantive appeal was received in May 2017. In March 2019 correspondence, the Veteran’s representative stated that the Veteran wished to withdraw the issues pending before the Board from October 1, 2013, the date the Veteran was assigned a 100 percent rating. In September 2019, the Board dismissed the claim for a rating in excess of 10 percent for a lumbar spine disability from October 1, 2013, denied the claim for an initial rating in excess of 10 percent for the period prior to October 1, 2013, and granted service connection for right lower extremity radiculopathy. The Veteran appealed to the Court of Appeals for Veterans Claims (CAVC or Court). In a September 2020 Order, the Court vacated the Board’s September 2019 decision with respect to the denial of an initial rating in excess of 10 percent for the period prior to October 1, 2013 and denial of service connection for right lower extremity radiculopathy, and remanded the matters pursuant to a September 2019 Joint Motion for Partial Remand (JMPR). 1. An initial disability rating in excess of 10 percent for the service-connected degenerative disc disease of the lumbar spine status post fusion (lumbar spine disability) for the period prior to October 1, 2013. The Veteran seeks an initial disability rating in excess of 10 percent for her service-connected lumbar spine disability, prior to October 1, 2013. The Veteran’s service-connected degenerative disc disease of the lumbar spine status post fusion is rated as 10 percent disabling prior to October 1, 2013 under 38 C.F.R. § 4.71a, DC 5242. 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.”). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). 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). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actual painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. 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 (ROM) testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with ROM measurements of the opposite undamaged 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. Currently, disabilities of the spine are rated pursuant to the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) under DCs 5237 through 5243. 38 C.F.R. § 4.71a. In addition, IVDS, under DC 5243 may also be rated based on Incapacitating Episodes (IVDS Formula). 38 C.F.R. § 4.71a, DC 5243. Under the General Rating Formula, 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 entire thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees. A 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or 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 evaluation is warranted where forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. The only higher schedular evaluations under the General Rating Formula are 50 percent for unfavorable ankylosis of the entire thoracolumbar spine and 100 percent for ankylosis of the entire spine. Id. Note (1) to the General Rating Formula directs VA to evaluate any associated objective neurologic abnormalities separately, under an appropriate Diagnostic Code. Id. Under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), a 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months; and a 60 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. An “incapacitating episode” under this formula is defined as “period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.” Id. at Note 1. The General Rating Formula provides a schedule of ratings for spine disabilities with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of an injury or disease. As an initial matter, The Board observes that there is no evidence of IVDS or ankylosis at any time during the period on appeal, and accordingly, the provisions associated with these conditions will not be addressed hereunder. Medical records indicate that the Veteran has a long history of back issues and has undergone multiple surgeries on her back. The Veteran underwent two lumbar discectomies in 2000 and lumbar fusion and bone fragment removal surgeries in 2003 and 2004. See, e.g. March 2006 VA treatment note. A September 2008 service treatment note indicates that the Veteran suffered a fall and reported persistent low back pain in its wake. The Veteran’s lumbosacral spine was examined and exhibited abnormalities, but no range of motion testing was documented. A July 2009 VA treatment note reveals that the Veteran continued to report persistent lower back pain along with lower extremity pain. A CT scan revealed narrowing of the right neural foramina, right facet arthropathy, posterior vertebral osteophytes, mild center canal narrowing at the L4-L5 level by degenerative arthropathy and posterior calcified ligamentum flavum. Posterior rod and screw fusion of the L5-S1 levels were unremarkable with no hardware complications, acute fractures or subluxation seen. An August 2009 VA orthopedic consult note indicates that the Veteran continued to report chronic low back pain dating back to when she was thrown off the back of an MKT in 2003-2004 and had to undergo a surgical fusion of the L5 and S1 vertebrae. Range of motion testing was performed which “revealed a very limited range of motion secondary to discomfort.” Flexion was limited to approximately 25 degrees. Extension was limited to 20 degrees and rotation was limited to approximately 20 degrees in each direction. Straight leg raise testing was positive on the right and negative on the left. An August 2009 reserve service treatment note indicates the Veteran’s temporary physical profile was extended three months due to her low back pain and she was recommended to increase dosage of prescribed pain medication. The Veteran underwent a general VA examination in August 2009. The Veteran was diagnosed with degenerative disc disease of the lumbosacral spine status post laminectomy and fusion. Evaluation of the lumbosacral spine revealed mild diffuse tenderness but no paraspinal spasm. Straight leg raising testing was negative bilaterally. Range of motion testing documented forward flexion to 90 degrees, backward extension to 30 degrees, right and left lateral flexion to 30 degrees and right and left rotation to 30 degrees. The VA examiner found no objective evidence of pain on motion. The examiner stated that there was no evidence of weakened movement, excess fatigability or incoordination. The examiner stated that there was no evidence that these or pain decrease motion during exacerbations or repetitive activity. The examiner noted that flare-ups occur daily and are of moderate severity and duration but stated that there is no evidence of any additional limitation of motion or functional impairment during flare-ups. The examiner also noted that the Veteran ambulates independently and does not have ankylosis. An October 2009 reserve service physical profile indicates that the Veteran was unable to perform sit-ups secondary to low back pain and was unable to run, even at her own pace and distance. However, it is not specified to what extent, if any, this limitation was secondary to her low back pain. A December 2009 reserve service treatment note reveals that the Veteran reported constant and severe low back pain. She reported that she could not drive long distances because of the pain and experienced pain while performing housework and going up and down steps. She stated that she could not perform pushups due to back pain. During an October 2012 VA orthopedic consult, range of motion testing of the lumbar spine was performed which “revealed very guarded and painful range of motion.” Flexion was limited to approximately 30 degrees. The Veteran was able to extend to neutral. Lateral rotation was limited to approximately 20 degrees. The Veteran was able to support herself on toes and heels of both lower extremities and had good strength of hip flexors and extensors. A November 2012 VA treatment note indicates that the Veteran had full lumbar flexion, pain with end range extension, no pain with side bending and right low back pain with left oblique extension. The Veteran’s posterior superior iliac spine was tender to palpation. The VA physician stated that the Veteran’s gluteal/low back pain was consistent with SI joint arthropathy with piriformis myofascial pain syndrome. Based on the foregoing, the Board concludes that a 40 percent disability rating is warranted for degenerative disc disease of the lumbar spine status post fusion. Specifically, as discussed above, treatment notes associated with an October 2012 orthopedic consultation show forward flexion of the thoracolumbar spine limited to 30 degrees or less, with guarded and painful motion. While the August 2009 VA examination and the November 2012 VA treatment note indicate normal, or nearly normal ranges of motion, the Veteran consistently complained of, and was treated for, persistent low back pain. She reported significant difficulty with many physical activities such as going up and down stairs and performing housework, and she was put on an extended temporary physical profile due to her lumbar spine disability. Thus, the Board regards the results reported in October 2012 VA orthopedic treatment notes as most likely representative of the degree of limitation the Veteran experienced during the period at issue. Thus, resolving all doubt in favor of the Veteran, the criteria for a 40 percent initial disability rating for service-connected degenerative disc disease of the lumbar spine status post fusion for the period prior to October 1, 2013 are met, and to that extent, the appeal for increase is granted. See 38 C.F.R. §§ 4.40, 4.45. A disability rating in excess of 40 percent for the service-connected degenerative disc disease of the lumbar spine status post fusion for the period prior to October 1, 2013 is not warranted. As noted above, there is no evidence of ankylosis of the thoracolumbar spine or of IVDS, and thus, no higher rating is available under any DC relevant to the Veteran’s disability. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”- the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases may also be established based upon a legal “presumption” by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected condition. 38 C.F.R. § 3.310. 2. Service connection for radiculopathy of the left lower extremity, secondary to service-connected degenerative disc disease of the lumbar spine status post fusion (lumbar spine disability). At the outset, the Board notes that there is no specific evidence or argument indicating that the current left leg disability had its onset during service or is otherwise directly related to the Veteran’s active service. However, the evidence indicates that the Veteran’s left leg pain, diagnosed as radiculopathy, developed as secondary to her service-connected lumbar spine disability. The Veteran has averred that she is entitled to service connection for right and left lower extremity radiculopathy. In its September 2019 decision, the Board granted service connection for right lower extremity radiculopathy as secondary to the service-connected lumbar spine disability, finding that the evidence only supports a finding for radiculopathy of the right lower extremity. However, as noted by the Court, the medical evidence of record demonstrates numerous complaints and treatment for left lower extremity radicular symptoms in conjunction with lumbar pain. A July 2009 VA treatment note indicates that the Veteran’s primary complaint was pain in her back, shoulder and lower extremities. Similarly, an October 2012 VA orthopedic note indicates that the Veteran was experiencing radicular pain involving primarily the right lower extremity, but also to a lesser degree to the left lower extremity. Based on the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s radiculopathy of the left lower extremity is related to her service-connected lumbar spine disability. Moreover, there is no evidence suggesting that the radiculopathy is a manifestation of another disability, and the record suggests no more likely provenance of the Veteran’s left lower extremity radicular symptoms. As such, service connection for radiculopathy of the left lower extremity as secondary to the Veteran’s service-connected lumbar spine disability, is granted. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Modesto, Victor 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.