Citation Nr: 21008358 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 17-56 189A DATE: February 16, 2021 ORDER A rating in excess of 20 percent for spondylosis lumbar spine with stenosis T11-T12, bulging disc L2-L3, and osteoarthritis L4-L5 and L5-S1, is denied. A temporary total rating (TTR) pursuant to 38 C.F.R. § 4.30, based on the need for convalescence following lumbar spine surgery in December 2016, is denied. FINDINGS OF FACT 1. The Veteran’s service-connected lumbar spine disability is manifested by chronic pain, limitation of motion with pain, flare-ups, and limitations on bending, lifting, and prolonged sitting, standing, and walking; neither flexion limited to 30 degrees or less nor ankylosis has been shown; and other than the separately service-connected radiculopathy of the lower extremities, there is no objective evidence of related neurological abnormalities. 2. The preponderance of the competent evidence of record is against a finding that the Veteran required a period of convalescence following lumbar spine surgery in December 2016. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for spondylosis lumbar spine, with stenosis T11-T12, bulging disc L2-L3, and osteoarthritis L4-L5 and L5-S1, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code (DCs) 5242, 5243. 2. The criteria for a TTR, due to surgical treatment for a service-connected disability requiring convalescence, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.30. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1985 to January 2004. In March 2019, the Board remanded the claim for a higher rating for the service-connected lumbar spine disability for further development. In a July 2020 rating decision, the Regional Office (RO) granted a 20 percent rating for the service-connected lumbar spine disability, effective from August 16, 2015. The Veteran continued his appeal for a higher rating. Based on the Veteran’s August 2020 statement, an inferred claim of entitlement to a temporary total rating pursuant to 38C.F.R. §4.30 was raised by the record as part of the appeal for a higher rating for the service-connected lumbar spine disability. In October 2020, the Board remanded this matter for further evidentiary development. Increased Rating 1. Entitlement to a rating in excess of 20 percent for spondylosis lumbar spine with stenosis T11-T12, bulging disc L2-L3, and osteoarthritis L4-L5, L5-S1. Disability ratings are determined by application of the VA Schedule for Rating Disabilities, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Pt.4. The Veteran's service-connected lumbar spine disability has been evaluated pursuant to Diagnostic Code (DC) 5242 which is rated under the General Rating Formula for Diseases and Injuries of the Spine. Because VA treatment records show he also has intervertebral disk displacement associated with his service-connected lumbar spine disability, this disability may also be rated under the General Rating Formula or the Formula for Rating Intervertebral Disc Syndrome (IDS) Based on Incapacitating Episodes, whichever results in the higher rating. 38 C.F.R. § 4.71a, DC 5243. Under the Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is assigned for 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 is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. Under the General Formula for Rating IDS Based on Incapacitating Episodes, a 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of least 4 weeks but less than 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. An incapacitating episode is defined as a period of acute signs and symptoms due to IDS that requires bedrest prescribed by a physician and treatment by a physician. Id. The Veteran contends that a rating in excess of 20 percent should be granted for his service-connected lumbar spine disability. Review of the record includes VA treatment records showing that in March 2015, the Veteran denied having back pain at that time. The assessment was chronic low back pain/spinal stenosis. It was noted that he had been seen by neurosurgery and given a back brace, did physical therapy, and took over the counter medications for back pain. On a VA examination in October 2015, the Veteran reported constant back pain, at a level 5 out of 10, and described as "shocking" in quality. He denied flare-ups, and range of motion testing was normal, with forward flexion to 90 degrees. Pain was noted but did not result in functional loss. There was no tenderness, guarding, or muscle spasm of the lumbar spine. The Veteran was able to perform repetitive use testing, with no additional loss of function or range of motion. Muscle strength testing was normal, and no atrophy was noted. It was noted that he occasionally used a back brace for pain. Private records from the Campbell Clinic show that in January 2016, the Veteran was seen for low back pain. Examination revealed full muscle strength (5/5), and range of lumbar motion within normal limits. Tenderness was noted. VA treatment records show that in March 2016, the Veteran reported his back pain was at level 9 out of 10. Private records from the Campbell Clinic showed that in April 2016, the Veteran underwent a left L5 translaminar epidural steroid injection. In May 2016, he reported having low back pain that was worse with standing and walking, but noted that his left-sided back pain was mostly gone, and his right-sided pain had come back. He also reported occasional problems getting out of a chair and with prolonged standing and walking. In June 2016, he underwent a right L4 translaminar epidural injection. In July 2016, he reported that the right-side injection had not worked for more than a week, and the pain still came and went. In August 2016, he underwent physical therapy for his lumbar spine disability. In October 2016, he reported his back pain was worse with prolonged standing and walking, but full muscle strength was noted. In September 2016, the Veteran reported he could not stand for more than a second or two, and he was referred for a surgical evaluation. (The Board notes that there are notations in VA and private treatment records showing that the Veteran underwent a lumbar laminectomy at the Campbell Clinic in December 2016, but no actual treatment records regarding his surgery are of record.) There is one post-surgical record, showing that in January 2017, the Veteran was seen three weeks after surgery; he reported he was doing “great” and that it only hurt in his back. He also reported he could stand for a longer period of time, his leg pain was better, and he was to start walking. VA treatment records show that in August 2018, the Veteran reported low back pain at a level 8 out of 10. He walked with a cane and could not stand for a long time because his back would start to hurt. In March 2019, he continued to report low back pain with radiculopathy, and the assessment included chronic low back pain, spinal stenosis, intervertebral disk displacement and lower lumbar disc herniation. In a March 2019 letter from a VA facility, the Veteran was offered physical therapy and was advised to use his brace as recommended. On a VA examination in December 2019, the Veteran reported he felt like a nerve was pinching and that when walking "it hits, [and] sometimes it brings [him] to [his] knees." He was given a cane and a brace to assist with stability from pain, and he occasionally used the brace, more so when active, and regularly used the cane. He reported constant aching and throbbing pain with wavering severity, at a baseline of level 5-6 out of 10. He reported flare-ups 5 to 6 times a week, with increased sharp pain to level 8, and lasting less than a minute. He increased his rest to relieve a flare-up. He reported he was unable to perform activities that required bending, lifting, or prolonged sitting and standing, and that it was hard to do household chores. Range of motion testing revealed flexion to 50 degrees and extension to 20 degrees, with pain on motion. Pain limited his range of motion and ability to perform tasks that required bending and lifting. He had pain on weight-bearing, but no tenderness on palpation, guarding, or muscle spasms. He was able to perform repetitive-use testing, with no additional loss of function or range of motion. The examiner opined that pain significantly limited function ability with repeated use over a period of time. He reported that walking long distances aggravated his pain. Muscle strength was normal, and no atrophy was noted. A June 2020 VA treatment record shows that the Veteran reported low back pain at a level 8 out of 10, radiating to both legs. He walked with a cane and could not stand up for long because his back would start to hurt. He was followed by Campbell Clinic, but had been told there was nothing they could do for him. The assessment included chronic low back pain, spinal stenosis, intervertebral disk displacement, and lower lumbar disc herniation. He had been seen by neurosurgery and given a back brace. After careful review of the record, the Board finds the preponderance of the evidence of record weighs against the grant of a higher rating for the Veteran’s service-connected lumbar spine disability. Significantly, there has been no report or finding of flexion to 30 degrees or less, ankylosis, or incapacitating episodes. While VA examinations noted the Veteran did not have IDS and did not specifically assess if he had incapacitating episodes, as noted above, the Board has acknowledged he has IDS. Review of his VA treatment records and VA examination reports, however, do not show that he has experienced any episodes of acute signs and symptoms that have required bedrest prescribed by a physician and/or treatment by a physician. Further, the Board has considered the Veteran's complaints of chronic low back pain, flare-ups, and limitations on bending, lifting, sitting, standing, and walking, as well as potential additional limitation of functioning resulting therefrom. With regard to limitation of motion, the objective findings for flexion do not meet or approximate the criteria for a 40 percent rating, even considering the effects of pain. Additionally, on the VA examination in 2019, the Veteran reported that during the flare-ups he experienced increased sharp pain, however, the examiner noted that repetitive use testing did not result in additional loss of motion. The Board therefore concludes there is insufficient objective evidence to conclude that the Veteran's back pain and other symptoms have been associated with such additional functional limitation as to warrant a higher rating. 38 C.F.R. §§ 4.40, 4.45, DeLuca v. Brown, 8 Vet. App. 202 (1995). The criteria for a higher rating for the service-connected lumbar spine disability have not been met or approximated at any time, nor has his service-connected lumbar spine disability ever been manifested by complaints, objective findings, or functional impairment that would warrant a higher rating. Rather, the clinical and reported findings more nearly approximated the criteria for a 20 percent rating. 38 C.F.R. § 4.7. The Board also notes that other than the separately service-connected radiculopathy of the lower extremities, there has been no evidence of any other related neurological abnormalities. 2. Entitlement to a TTR pursuant to 38 C.F.R. § 4.30, based on the need for convalescence following lumbar spine surgery in December 2016. The Veteran contends he should be entitled to a TTR, pursuant to 38 C.F.R. § 4.30, due to having to convalesce following a surgical lumbar laminectomy on December 17, 2016. A TTR (100 percent) will be assigned when it is established by report at hospital discharge or outpatient release that entitlement is warranted. Total ratings will be assigned under this section if treatment of a service-connected disability resulted in (1) surgery necessitating at least one month of convalescence, (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or for continued use of wheelchair or crutches, (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30. VA treatment records note that in December 2016, the Veteran underwent a lumbar laminectomy. On December 20, 2016 (apparently three days post-surgery) he was seen in the urology department and it was noted he had recently had a laminectomy and was still recovering. Treatment records from the Campbell Clinic show that on January 5, 2017, it was noted that the Veteran was being seen three weeks after surgery. He reported he was doing “great” and that it only hurt in his back. He could stand for a longer period of time, and his leg pain was better. He was to start walking. In an October 2019 letter, the Regional Office (RO) requested that the Veteran complete a release of information (VA Form 21-4142) so that records from his December 2016 surgical laminectomy could be obtained. A few weeks later that same month, he called in response to the letter, indicating he had already submitted all relevant documentation, and requested that VA please review and take all appropriate action on his claim. In November 2019, the Veteran did submit a VA Form 21-4142 for the Campbell Clinic, on which he noted treatment from April 2016 to November 2018. At that time, he also submitted records from the Campbell Clinic, which were duplicates, but included a reminder of an upcoming appointment on February 2, 2017, but no copy of the actual treatment record for that date. Although the Veteran submitted the requested form, it appears that the RO did not, at that time, make a specific request to the Campbell Clinic to attempt to obtain the records of December 2016 laminectomy and any follow-up care. In August 2020, the Veteran submitted a statement in support of claim (VA Form 21-4138) in which he indicated the recently granted 20 percent rating for his service-connected lumbar spine disability did not “adequately compensate [him] for the period of convalescence [he] endured subsequent to back surgery. He reported he had back surgery (laminectomy) on December 17, 2016, at the Campbell Clinic, and noted that this surgery was referenced in the January 2017 treatment record, which described a three-week post-surgery visit to Campbell Clinic. He also noted there was a record dated February 2, 2017, which described a seven-week post-surgery visit at Campbell Clinic and which he was “attaching to this statement". He also reported receiving post-surgery treatment at the VA Clinic in Memphis, and that subsequent to his back surgery he experienced a "lengthy period of convalescence which lasted approximately 9 months" and that during this timeframe he wore a back brace and relied upon a cane to assist him with his movement. He further reported he had been unable to ambulate safely in his home without assistance during the first four months of his convalescence. In an October 2020 letter, the RO requested that the Veteran give permission (complete a VA Form 21-4142) so that VA could obtain any outstanding Campbell Clinic treatment records, to specifically include records of the December 2016 surgical laminectomy and any associated follow-up medical care, to specifically include the February 2, 2017 appointment. The record shows that the Veteran did not respond to this request from the RO. In reviewing the record, the Board concludes that the competent evidence does not support a finding that a convalescence period of 30 days or more was required after the Veteran’s laminectomy. While the Board acknowledges that the Veteran indeed underwent the December 2016 lumbar laminectomy surgery, the details of this surgery and post-operative recovery, as well as the nature of his convalescence are unclear as there is only one follow-up treatment record dated in January 2017. As noted above, various treatment records from the Campbell Clinic are of record, and while these records are dated from January 2016 through January 2017, there is a gap between October 24, 2016 to January 5, 2017, and no treatment record pertaining to, or operation report memorializing, the December 2016 lumbar laminectomy. Thus, the preponderance of the competent evidence of record does not show that the Veteran's recovery from surgery required 30 days or more of convalescence, and a TTR is not warranted under 38 C.F.R. § 4.30. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Casula 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.