Citation Nr: 21009440 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 16-53 306A DATE: February 22, 2021 ORDER A disability rating in excess of 40 percent for degenerative disc disease of the lumbar spine is denied. REMANDED A disability rating in excess of 10 percent for right lower radiculopathy prior to November 25, 2016, and in excess of 20 percent from November 25, 2016, forward, is remanded. An initial disability rating in excess of 10 percent for left lower extremity radiculopathy prior to November 25, 2016, and in excess of 20 percent from November 25, 2016, forward, is remanded. FINDING OF FACT The Veteran’s service-connected lumbar spine disability has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes of intervertebral disc syndrome (IVDS) having a total duration of at least six weeks during any twelve-month period. CONCLUSION OF LAW The criteria for entitlement to a disability evaluation in excess of 40 percent for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.71a, Diagnostic Codes (DCs) 5242, 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1984 to February 1988. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision of a Department of Veteran Affairs (VA) Regional Office (RO) that denied entitlement to a disability rating in excess of 40 percent for degenerative disc disease of the lumbar spine; awarded an increased 10 percent rating for right lower extremity sensory dysfunction, effective May 27, 2015; and awarded a separate 10 percent rating for left lower extremity radiculopathy, effective May 27, 2015. The claims were previously before the Board in November 2018 when they were remanded for further development. In September 2020, the RO awarded increased ratings of 20 percent for right lower extremity radiculopathy (previously rated as right lower extremity sensory dysfunction) and left lower extremity radiculopathy, respectively, effective November 25, 2016. Increased Ratings VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected disabilities in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability 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 C.F.R. § 4.1. DCs in the rating schedule identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3; see also 38 C.F.R. § 3.102. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A disability rating in excess of 40 percent for degenerative disc disease of the lumbar spine is denied. The Veteran’s service-connected degenerative disc disease of the lumbar spine is currently rated as 40 percent under DCs 5242-5243. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. VA’s schedule for rating musculoskeletal and muscle injury disabilities was revised effective February 7, 2021, during the pendency of the appeal. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). Prior to February 7, 2021, the old rating criteria solely applies. From February 7, 2021, the most favorable rating criteria of the two applies. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The revisions to the General Rating Formula for Diseases and Injuries of the Spine do not include changes to DC 5242, contemplating degenerative arthritis, save for its inclusion of degenerative disc disease other than IVDS. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5242). The rating schedule provides for the evaluation of all disabilities of the spine under a General Rating Formula for Diseases and Injuries of the Spine. In pertinent part, a 40 percent rating is assigned forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted where unfavorable ankylosis of the entire spine is demonstrated. Id. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is from 0 to 90 degrees, extension is from 0 to 30 degrees, left and right lateral flexion are from 0 to 30 degrees, and left and right lateral rotation are from 0 to 30 degrees. 38 C.F.R. § 4.71a, DC 5235-5243, Note (2). Unfavorable ankylosis is defined, in pertinent part, as “a condition in which the entire thoracolumbar spine is fixed in flexion or extension.” Id., Note (5). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. 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.”). The Veteran was scheduled for a routine VA examination to assess the severity of his service-connected degenerative disc disease of the lumbar spine on May 27, 2015. He reported muscle spasms, back pain, and trouble straightening his back. He also reported that his back goes out about three times per year, and he misses work due to these flare-ups, which can occur spontaneously from activity such as standing up or sneezing. He typically has to take off from work for about three to four days per episode. The Veteran described his functional loss or functional impairment as being unable to lift heavy objects and having trouble going upstairs. Initial range of motion measurements show forward flexion from 0 to 50 degrees, extension from 0 to 20 degrees, right lateral flexion from 0 to 20 degrees, left lateral flexion from 0 to 20 degrees, right lateral rotation from 0 to 30 degrees, and left lateral rotation from 0 to 30 degrees. Range of motion loss was found to contribute to functional loss by affecting lifting, bending, and walking. Pain was noted on examination and resulted in functional loss. Pain on weightbearing was not found. Objective evidence of localized tenderness or pain on palpation was not shown. With repetitive use over time and flare-ups, forward flexion was reduced from 0 to 40 degrees without any change in the other range of motion measurements. Muscle spasms of the thoracolumbar spine were found but did not result in an abnormal gait or abnormal spinal contour. Muscle strength testing was found to be normal. No muscle atrophy was found. Mild to moderate bilateral lower radiculopathy was noted. No other neurologic abnormalities were found. Ankylosis of the spine was not found. Intervertebral disc syndrome was documented, but episodes requiring bed rest were not found. A VA back examination report is of record from April 2018. The Veteran reported symptoms of constant pain, sporadic sharp pain, a decrease in range of motion, muscle spasms, and locking up. He did not report flare-ups. For functional loss, the Veteran reported difficulties with bending, reaching, or lifting heavy items. He also reported difficulties with running, walking for long periods, sitting for long periods, or driving over long distances. Initial range of motion measurements show forward flexion from 0 to 50 degrees, extension from 0 to 5 degrees, right lateral flexion from 0 to 10 degrees, left lateral flexion from 0 to 10 degrees, right lateral rotation from 0 to 15 degrees, and left lateral rotation from 0 to 15 degrees. Range of motion loss was found not to contribute to functional loss. Pain was noted on examination and resulted in functional loss. Pain on weightbearing was documented. Objective evidence of localized tenderness or pain on palpation was not shown. With repetitive use over time and flare-ups, without resorting to mere speculation, the examiner was unable to describe in terms of range of motion the additional function loss or whether pain, weakness, fatigability, or incoordination significantly limit functional ability. Muscle spasms or guarding of the thoracolumbar spine were not found. Muscle strength testing was found to be normal. No muscle atrophy was found. Radiculopathy was not found. Ankylosis of the spine was not found. No other neurologic abnormalities were found. Intervertebral disc syndrome was not found. On VA examination in September 2019, the Veteran reported his low back pain had worsened and radiates down both legs into his feet. He also reported flare-ups that become so debilitating that he cannot get out of bed. When he can get out of bed, he cannot straighten up, and his torso is bent. Flare-ups were noted to occur twice weekly. The duration of flare-ups was documented to be from one day to one week and to be moderately severe. The Veteran reported his functional loss consisted of difficulties with standing and walking for prolonged periods of time, a difficulty with climbing stairs, being unable to bend over or carry heavy objects, and a difficulty with standing after prolonged seating or lying down. He was unable to do sports or exercise at the gym. Initial range of motion measurements show forward flexion from 0 to 50 degrees, extension from 0 to 10 degrees, right lateral flexion from 0 to 20 degrees, left lateral flexion from 0 to 30 degrees, right lateral rotation from 0 to 30 degrees, and left lateral rotation from 0 to 30 degrees. Range of motion was found not to contribute to functional loss. Pain was noted on examination and resulted in functional loss. No evidence of pain on weightbearing was found. Objective evidence of localized tenderness or pain on palpation was shown. Regarding repeated use over time, pain was found to cause an additional limitation in functional ability of the back. The examination showed painful range of motion with a moderate loss of range of motion in flexion and extension with a mild loss of range of motion in lateral flexion. During repeated use over time or after prolonged walking or standing or sitting, the examiner found the Veteran will likely have more pain and experience a mild to moderate additional range of motion loss. Pain, weakness, fatigability, or incoordination was found to significantly limit functional ability with flare-ups. The examiner found the additional range of motion loss with flare-ups would be moderate. Muscle spasms of the thoracolumbar spine were noted but were found not to result in an abnormal gait or spinal contour. Muscle strength testing was found to be normal. No muscle atrophy was documented. Mild to moderate bilateral lower radiculopathy was noted. No other neurologic abnormalities were found. Ankylosis of the spine was not found. Intervertebral disc syndrome was noted but episodes requiring bed rest were not found. Considering the above-referenced evidence, for the entire appellate period, the Veteran has not been shown to have unfavorable ankylosis of the entire thoracolumbar spine so as to warrant a 50 percent rating under the General Rating Formula for Diseases and Injuries of the Spine. He exhibited range of motion of his spine on all VA examinations, which provided range of motion testing, to include in May 2015, April 2018, and September 2019. Furthermore, the May 2015, April 2018, and September 2019 VA examiners specifically noted there was no ankylosis of the Veteran’s spine. Accordingly, the criteria for a 50 percent rating under the General Rating Formula have not been met. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Because 40 percent is the maximum schedular rating available for limitation of motion of the thoracolumbar spine, there is no need to consider functional loss, including flare-ups, or any inadequacy in the VA examinations as to not addressing flare-ups. See 38 C.F.R. §§ 4.40, 4.45; Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (A higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code pertaining to range of motion.). For similar reasons, the Court’s holdings in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) are not for application as range of motion findings cannot result in a higher rating. Thus, a rating higher than 40 percent is not warranted under DC 5242. Further, the criteria for a rating in excess of 40 percent under DC 5243, contemplating IVDS, have not been satisfied during the pendency of this claim. To assign a rating in excess of 40 percent, the 60 percent maximum rating, under DC 5243, there must be incapacitating episodes of IVDS requiring bed rest prescribed by a physician and treatment by a physician having a total duration of at least six weeks during the past twelve months. See 38 C.F.R. § 4.71a, Formula for Rating IVDS, Note (1). The revised schedule, in effect as of February 7, 2021, contemplating IVDS under DC 5243, provides that such criteria shall be used only when there is disc herniation with compression and/or irritation of the adjacent nerve root; in all other cases, DC 5242 should be used for all other disc diagnoses. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5243). IVDS shall be evaluated, preoperatively or postoperatively, either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Id. Regardless of whether the Veteran has had any disc herniation with compression and/or irritation of the adjacent nerve root as of February 7, 2021, requiring that his disability be rated under the Formula for Rating IVDS or the General Rating Formula for Diseases and Injuries of the Spine, whichever results in the higher rating, he has not been shown to have incapacitating episodes of spine disease requiring bed rest prescribed by a physician having a total duration of at least six weeks during any twelve-month period during the entire appeal. Although the Veteran was diagnosed with IVDS in May 2015 and September 2019, it was also noted he did not have any episodes that required bed rest prescribed by a physician in the past 12 months. Accordingly, the criteria for a rating under DC 5243 higher than 40 percent are not more nearly approximated. The Board emphasizes that the cited revisions do not contain any outcome-determinative changes that impact the Veteran’s service-connected lumbar spine disability. As such, the Board finds there is no prejudice to the Veteran in the Board’s consideration of the amended regulations in this appeal. See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993); 38 C.F.R. § 20.904(d)(2). For these reasons, the preponderance of the evidence is against entitlement to a disability rating in excess of 40 percent for the Veteran’s service-connected degenerative disc disease of the lumbar spine throughout the entire rating period. Under these circumstances, the benefit of the doubt rule does not apply, see 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 at 54-56 (1990), and the claim for an increased rating must be denied. REASONS FOR REMAND 1. A disability rating in excess of 10 percent for right lower radiculopathy prior to November 25, 2016, and in excess of 20 percent from November 25, 2016, forward, is remanded. 2. An initial disability rating in excess of 10 percent for left lower extremity radiculopathy prior to November 25, 2016, and in excess of 20 percent from November 25, 2016, forward, is remanded. In November 2018, Board remanded the issues of a disability rating in excess of 10 percent for right lower extremity radiculopathy and an initial disability rating in excess of 10 percent for left extremity radiculopathy. The AOJ did not issue a Supplemental Statement of the Case (SSOC) addressing the claims prior to returning the appeal to the Board. The Board notes that the claims file contains SSOCs that were issued in October 2020 and November 2020, but those SSOCs did not address the above claims. Accordingly, a remand for the issuance of an SSOC is required. The matters are REMANDED for the following action: 1. Obtain the Veteran’s updated VA treatment records. 2. After completing any development that may be indicated, readjudicate the Veteran’s claims. If the benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. P. M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Buck Denton 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.