Citation Nr: 21009262 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 14-27 566 DATE: February 22, 2021 ORDER Entitlement to an initial increased rating above 20 percent for degenerative disc disease (DDD) of the lumbar spine is denied. FINDING OF FACT The evidence fails to show that the Veteran’s lumbar DDD has manifested in: (a) forward flexion of the thoracolumbar spine at 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine (contemplated by the 40 percent rating); (b) unfavorable ankylosis of the entire thoracolumbar spine (contemplated by the 50 percent rating); or (c) unfavorable ankylosis of the entire spine (contemplated by the 100 percent rating). CONCLUSION OF LAW The criteria for entitlement to an initial increased rating above 20 percent for DDD of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.25, 4.71a, Diagnostic Code (DC) 5243, General Rating Formula for Diseases and Injuries of the Spine (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had qualifying service from September 1968 to September 1972 and January 2005 to January 2008. In an April 2018 Decision, the Board denied the claim herein. In a November 2018 Joint Motion for Partial Remand (JMPR), the U.S. Court of Appeals for Veterans Claims (Court) vacated the April 2018 Board Decision and remanded the claim herein. In July 2019 and June 2020 Decisions, the Board remanded the claim herein for further medical development. 1. Entitlement to an initial increased rating above 20 percent for DDD of the lumbar spine In determining the severity of a disability, the Board applies the criteria set forth in the Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If the disability more closely approximates the criteria for the higher of two ratings, the higher rating is assigned. 38 C.F.R. § 4.7. The Veteran generally contends that his lumbar DDD is more severe than contemplated by the current rating of 20 percent. The Veteran’s lumbar DDD has been rated under DC 5243 at 20 percent since January 3, 2008. See April 2020 Codesheet; 38 C.F.R. § 4.71a, DC 5243. All spine disabilities covered by DCs 5235 to 5243 are rated according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula) based on limitation of motion. 38 C.F.R. § 4.71a, General Formula. A 20 percent rating is warranted for: forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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 warranted for: forward flexion of the thoracolumbar spine at 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent (maximum schedular) rating is warranted for unfavorable ankylosis of the entire spine. Any associated objective neurologic abnormalities are evaluated separately. 38 C.F.R. § 4.71a, General Formula, Note (1). In this case, however, the Veteran has not contended, and the evidence does not otherwise indicate, associated neurological abnormalities. See September 2009, May 2016, and October 2019 VA back conditions examination reports. Intervertebral disc syndrome (IVDS) is evaluated either under the General Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, General Formula, Note (6). In this case, however, the evidence does not indicate that the Veteran has been diagnosed with IVDS. See September 2009, May 2016, and October 2019 VA back conditions examination reports. As such, the Board’s analysis focuses on whether an increased rating is warranted under the General Formula. Throughout the appeal period, the lumbar DDD has been manifested by flare-ups. See September 2009 VA back conditions examination report (the Veteran reported chronic pain, weakness, easy fatigue, and flare-ups of the back with activity that is helped by resting and laying down); May 2016 VA back conditions examination report (the Veteran reported constant pain and flare-ups of the back with activity that cause cramping, spasm, and significantly-increased pain that is helped by walking, stretching, cold packs, medication, hot tub use, and limiting daily activities); October 2019 VA back conditions examination report (the Veteran reported constant pain sometimes with brief spasm and flare-ups twice a year without provocation causing increased pain and his back to seize up for two to five days, which limits activity, requires more rest, and requires medication). In this case, the September 2009 VA examination is inconsistent with the DeLuca, Correia, and Sharp holdings and, although the May 2016 and October 2019 VA examinations are consistent with the Sharp holding, they are inconsistent with the Correia holding; as such, the agency of original jurisdiction (AOJ) obtained a July 2020 addendum opinion consistent with the Correia holding, as directed by the June 2020 Board Decision. DeLuca v. Brown, 8 Vet. App. 202 (1995) (examiners must contemplate additional functional loss due to weakness, fatigability, incoordination, or painful motion); Correia v. McDonald, 28 Vet. App. 158 (2016) (when possible, examiners must include range of motion testing on active and passive motion and in weight-bearing and nonweight-bearing conditions); Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) (examiner must attempt to elicit information regarding the severity, frequency, duration, and functional loss during flare-ups before determining that additional range of motion loss due to flare-ups cannot be estimated). As such, the Board will consider the Veteran’s contentions from all examinations, but will focus its attention on (and apply retroactively to the entire appeal period) the medical findings from the October 2019 VA examination with July 2020 addendum opinion (to ensure consistency with the DeLuca, Correia, and Sharp holdings). During the October 2019 VA examination, the Veteran reported that: his low back pain was essentially the same as during the May 2016 VA examination; he continues to have constant daily pain averaging 4 out of 10 on a 10-point scale of intensity; two to three times per week, with a wrong movement of picking up something heavy, he has a burning pain and/or spasm briefly; he needs help moving anything over 100 pounds; two times per year, without provocation, his pain will increase (to 6 or 7 out of 10) and his lower back will seize up for two to five days and his activity is limited, requiring rest and medication to assist; he can push through the pain except for the two to three times per year during his serious flare-ups; and he sees a chiropractor for back care, does daily stretching exercises, takes a nightly walk, enjoys hiking, does ballroom dancing with his spouse, works as a blacksmith, and does medieval martial arts instruction. The October 2019 examiner found, in pertinent part: (a) initial forward flexion to 90 degrees; (b) no additional functional loss after observed repetitive use; (c) that the examination is medically consistent with the Veteran’s statements describing functional loss with repetitive use over time; (d) that pain, weakness, fatigability, or incoordination does not significantly limit functional ability with repeated use over a period of time; (e) that the examination is neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare-ups; (f) that pain and lack of endurance significantly limit functional ability during flare-ups and that it was able to be described in terms of range of motion loss (in pertinent part, forward flexion to 70 degrees); (g) no guarding, no muscle spasm, no scars, normal muscle strength, no muscle atrophy, normal reflexes, normal sensory examination, no radiculopathy or other neurological abnormalities, no ankylosis, no IVDS, and no use of assistive devices; and (h) the Veteran had a limit of 100 pounds of unaided lifting as well as limitation in repetitive forward flexion or bending in activities requiring lifting. In the July 2020 addendum opinion, the examiner added that: (a) there was no evidence of pain on passive range of motion testing; and (b) there was no evidence of pain when the joint was used in non-weightbearing. Crucially, the evidence currently associated with the claims file does not meet the criteria for an increased rating above 20 percent because it fails to show: (a) forward flexion of the thoracolumbar spine at 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine (contemplated by the 40 percent rating); (b) unfavorable ankylosis of the entire thoracolumbar spine (contemplated by the 50 percent rating); or (c) unfavorable ankylosis of the entire spine (contemplated by the 100 percent rating). Without these criteria required for higher ratings, the highest schedular rating available for this disability is 20 percent; thus, the appeal for a rating above 20 percent must be denied. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Daus, 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.