Citation Nr: 21010050 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 15-32 240 DATE: February 23, 2021 ORDER An initial 20 percent rating, but no higher, for the Veteran’s service-connected lumbar strain and sacroiliac joint degenerative arthritis (hereinafter, low back disability) is granted. FINDING OF FACT The evidence of record favors a finding that during the entire period under review, the Veteran’s service-connected spine disability manifested in limitation of motion between 31 and 60 degrees in forward flexion, during flare-ups or after repetitive use. At no point does the evidence show more restricted limitation of motion or ankylosis. CONCLUSION OF LAW The criteria for the assignment of a 20 percent initial rating, but no higher, for the Veteran’s service-connected low back disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Army from March 1979 to June 2006. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2014 rating decision by the Agency of Original Jurisdiction (AOJ). In that decision, the AOJ implemented a Board decision granting entitlement to service connection for lumbar spine strain and sacroiliac joint degenerative arthritis. The AOJ awarded an initial 10 percent rating effective October 31, 2008. The Veteran disagreed with the assigned initial rating and perfected this appeal. In the same rating decision, the AOJ also assigned a 10 percent disability rating for a right sciatic nerve condition, effective October 31, 2008. In the Veteran’s notice of disagreement with the assigned initial rating for his spine, the Veteran expressed satisfaction with the sciatic nerve initial rating. The Veteran filed a claim for increase for his sciatic nerve disability, but ultimately withdrew that claim, and it is not in appellate status. See an August 2015 Statement in Support of Claim. Following a Board remand, in a July 2020 rating decision the AOJ increased the rating of the lumbar spine disability to 20 percent disabling, effective March 29, 2019, the date the Veteran’s representative indicated that the Veteran’s low back disability increased in severity. The appeal has been returned to the Board for further review. Increased Ratings Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. Low Back Disability The Veteran seeks a higher rating for his low back disability, diagnosed as lumbar spine strain and right sacroiliac joint degenerative arthritis with degenerative disc, which is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. As noted above, the Veteran's service-connected low back disability is rated as 10 percent disabling prior to March 29, 2019, and 20 percent disabling from that date. Diagnostic Code 5242 directs VA to rate the Veteran under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, DC 5237-5243 (2019). Unde the Formula for Rating IVDS, a disability is rated according to the number of incapacitating episodes a person has had in the past 12 months. 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. See Note (1) to DC 5243. Under the formula, 20 percent rating is assigned for incapacitating episodes having a total duration between 2 to 4 weeks during the past 12 month period, a 40 percent rating is assigned for incapacitating episodes having a total duration between 4 to 6 weeks during the past 12 month period, and a 60 percent rating is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating IVDS Based on Incapacitating Episodes. 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. Under the General Rating Formula for Diseases and Injuries of the Spine, 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 thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted 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 warranted for forward flexion of the thoracolumbar spine to 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 rating is warranted for unfavorable ankylosis of the entire spine. The United States Court of Appeals for Veterans Claims (Court), citing Dorland's Illustrated Medical Dictionary (28th ed. 1994), has recognized that ankylosis is defined as immobility and consolidation of a joint due to disease, injury or surgical procedure, for VA compensation purposes. See Colayong v. West, 12 Vet. App. 524, 528 (1999); Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). 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 Board finds that there is sufficient evidence to increase the Veteran’s initial disability rating from 10 to 20 percent, but no higher, under the General Rating Formula. An October 2008 treatment record from St. Johns Medical Center noted back pain. In a November 2008 statement, the Veteran’s wife indicated that he had pain in his lower back. She reported that his pain reduced his endurance dramatically. In March 2009, Dr. M.B. indicated that the Veteran’s knees affected the way he walked and his gait pattern, which put stress on his lower back, which bothered him daily. On May 2009 VA examination, the Veteran reported chronic back pain that never went away. He could walk for 10-15 minutes, but was unable to run. Repetitive movements of lifting, bending, and twisting increased the pain in his back and caused his leg symptoms. He did not use a cane or crutches. There were no incapacitating episodes. On examination, he was in no acute distress. There was no gross swelling, deformity, or discoloration in his lumbar spine. Range of motion showed forward flexion to 74 degrees, extension to 18 degrees, bilateral lateral flexion to 30 degrees bilaterally, and rotation was combined to 70 degrees with three repetitions. There was tenderness to palpation about the lumbar spine and the sacroiliac joint mildly, the right worse than the left. There was chronic lumbar spine strain with degenerative disc disease and right-sided SI joint dysfunction. There was x-ray evidence that showed right-sided sacroiliac joint with degenerative changes as well as degenerative disc disease. The examiner added that he would expect a loss of between 10 and 15 degrees of his overall range of motion, strength, coordination, and fatigability associated with repetitive movement/flares of the lumbar spine. The Veteran tolerated his work and his home life at this time, with no incapacitating episodes. During his April 2011 Decision Review Officer hearing, the Veteran reported that he had back pain. On April 2016 VA back examination, the Veteran described flare ups as daily low back pain that was worse in the morning with dull achy pain. He had pain with leaning over and bending. He did not report having any functional loss or functional impairment. Range of motion studies showed forward flexion to 70 degrees, extension to 15 degrees, and bilateral lateral flexion and rotation each to 25 degrees. The range of motion itself contributed to functional loss. There was pain on examination, but it did not result in/cause functional loss. There was pain on forward flexion, extension, and left lateral rotation. There was no evidence of pain with weight bearing. There was objective evidence of localized tenderness that did not result in abnormal gait or abnormal spine contour. When asked about muscle spasm and guarding, the examiner reported that there was none. There was tenderness in the right sciatic notch. The Veteran was able to perform repetitive use testing with at least three repetitions with no loss of function or range of motion after three repetitions. The examiner was unable to say without mere speculation whether or not pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time or flare-ups. The examiner indicated that the Veteran had IVDS but it did not require bed rest prescribed by a physician and treatment by a physician in the past 12 months. He did not use assistive devices. There were no other related pertinent physical findings, complications, conditions, signs or symptoms. There were no scars and no thoracic vertebral fracture with loss of 50 percent or more of height. There was arthritis. The back condition impacted his ability to work in that he could not do physical laborious jobs with heavy lifting, ladder work, or squatting requirements due to chronic low back pain. He could do sedentary work (as he currently was doing). At a December 2019 back examination, the Veteran was diagnosed with degenerative arthritis of the spine. He reported that pain was worse when he tried to lift anything. It was difficult to get up from the floor. His back hurt with riding long distances in the car. He described flare-ups of the thoracolumbar spine as a sharp pain in his low back when he stood up from his recliner that took his breath away. The pain was relieved in a short time by lying on the floor. He sometimes used a TENS or alpha stim to help relieve pain. He reported that he had a flare in the waiting area, but it subsided, and he no longer had a current flare up. No spams were noted and there was no bowel or bladder dysfunction. There was no functional loss or functional impairment of the thoracolumbar spine. Range of motion studies showed forward flexion to 70 degrees, extension to 20 degrees, right lateral flexion to 25 degrees, left lateral flexion to 30 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 30 degrees. The range of motion itself contributed to functional loss. There was pain on examination, but it did not result in/cause functional loss. There was pain on forward flexion, extension, bilateral lateral flexion, and bilateral lateral rotation. There was no evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joints across lumbar region of back. The Veteran was able to perform repetitive use testing with at least three repetitions with no loss of function or range of motion after three repetitions. Pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time. Forward flexion was to 60 degrees and extension, bilateral lateral flexion, and bilateral lateral rotation were each to 25 degrees. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with flare-ups. There was no guarding or muscle spasm. Straight leg testing was positive on the right side and negative on the left side. There was no ankylosis. The Veteran did not have IVDS and episodes requiring physician prescribed bedrest. He did not use assistive devices. There were no other related pertinent physical findings, complications, conditions, signs or symptoms. There were no scars and no thoracic vertebral fracture with loss of 50 percent or more of height. There was arthritis. The back condition did not impact his ability to work. There was no evidence of pain on passive range of motion testing or when the joint is used in non-weight bearing. The Veteran’s VA treatment records throughout the rating period document complaints of pain. Upon review of the evidence discussed above, the Board initially notes that although the Veteran has at times been assessed as having IVDS, a rating under the Formula for Rating IVDS would not avail the Veteran, as the evidence does not demonstrate he has been prescribed bed rest for his back disability by a physician. That stated, under the General Rating Formula, the evidence supports a finding that the Veteran’s initial rating should be raised from 10 to 20 percent, but no higher, effective October, 31, 2008. Indeed, although range of motion testing during the appeal period showed that the Veteran had forward flexion greater than 60 degrees upon examination, when considering the impact of flare-ups and repetitive use, the examiners estimated additional range of motion loss to a degree that supports the award of the higher initial rating. Indeed, at the May 2009 VA examination, the Veteran could forward flex to 74 degrees, but the examiner estimated a 10-15 degree loss in range of motion during flare-ups and after repetitive use. Resolving all doubt in the Veteran’s favor, the maximum estimated loss would bring limitation of flexion to a level commensurate with a 20 percent rating. The Board observes the April 2016 VA examiner could not estimate additional range of motion loss during flare-ups or after repeated use without resorting to speculation. Subsequently, December 2019 examiner estimated loss of flexion to 60 degrees after repetitive use, which is consistent with the estimations provided by the May 2009 VA examiner. Accordingly, when taking into consideration the Deluca factors listed above, the evidence shows that during flare-ups and after repetitive use, the Veteran’s lumbar spine disability limited forward flexion to 60 degrees or less, warranting the assignment of a 20 percent initial rating, effective October 31, 2008. That stated, higher ratings are not warranted during any time during the period under review. Even when considering Deluca factors, there is no indication that the Veteran’s spine disability causes limitation of flexion to 30 or less degrees, or otherwise manifests in ankylosis. The Veteran has not described limitation of such severity, and no such limitation has been identified upon examination, or after considering the impact of repetitive use or flare-ups. The Board has considered the Veteran’s representative’s reports in the March 29, 2019 informal hearing presentation indicating that the Veteran’s symptoms increased in severity. Indeed such statements prompted the Board to remand the appeal to obtain an updated examination. None of the examination reports, to include the most recent December 2019 report, and none of the VA treatment records or the Veteran’s contentions reflect that Veteran had symptoms productive of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine or IVDS with incapacitating episodes having a total duration of at least 6 weeks during any 12 month period since 2008. The Board recognizes that Note (1) of the General Rating Formula instructs VA to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. As discussed above, the AOJ has already recognized and awarded a separate rating for a right sciatic nerve disability as associated with his service-connected lumbar spine disability. The evidence of record does not indicate that further neurological impairment warranting a separate compensable rating. In making these determinations the Board considered the application of staged ratings but found no additional distinctive periods where the Veteran's service-connected low back disability met or nearly approximated the criteria for a higher rating other than that already granted. In sum, an initial 20 percent disability rating of 20 percent, but no higher, is granted. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Crohe, 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.