Citation Nr: 21010079 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-16 970 DATE: February 24, 2021 ORDER Throughout the period on appeal, entitlement to an increased rating of 40 percent, but no higher, for a lumbar spine disability is granted. FINDING OF FACT Throughout the period on appeal, the Veteran’s service-connected lumbar spine disability has manifested in limitation of forward flexion at 20 degrees during a flare-up. CONCLUSION OF LAW Throughout the period on appeal, the criteria for an increased rating of 40 percent, but no higher, for a lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1966 to March 1968, with service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, the Veteran testified before the undersigned Veterans Law Judge during a Board video conference hearing. This matter was previously denied in a September 2018 Board decision. The Veteran appealed the September 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court) in September 2019. In a September 2019 joint motion for partial remand, the parties agreed that the Board relied on an inadequate March 2016 VA examination. Accordingly, in a January 2020 Board remand, this matter was further remanded to obtain a VA examination to determine the severity of the Veteran’s lumbar spine disability. A VA examination was provided in October 2020. In a November 2020 rating decision, the RO denied an increased rating in excess of 10 percent prior to October 8, 2020. The RO granted a 40 percent rating from October 8, 2020. A supplemental statement of the case (SSOC) was issued in November 2020 notifying the Veteran of the partial grant of benefits. This matter is again before the Board for adjudication. Analysis The Veteran seeks an increased rating in excess of 10 percent for his lumbar spine disability. Specifically, he testified that he experiences back pain every day and must wiggle, move, or stand up for relief. See March 2018 Board Hearing. Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, 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. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be “staged.” Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings). As an initial matter, throughout the period on appeal, the RO staged the Veteran’s lumbar spine disability, increasing his disability rating from 10 percent to 40 percent effective October 8, 2020. However, the assignment of staged rating is not supported by the evidence as the evidence prior to October 8, 2020 are inadequate for evaluating the severity of the Veteran’s lumbar spine disability. As such, the Board finds that staged ratings are not warranted. The Veteran’s lumbar spine disability is currently rated under DC 5237. Diagnostic Code 5237 is rated under the General Rating Formula for Diseases and Injuries of the Spine which provides 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 evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. The Veteran’s October 2020 VA examination further indicates that he has a diagnosis of intervertebral disc syndrome (IVDS) which is rated under DC 5243. Under DC 5243, if the Veteran has a diagnosis of IVDS, then IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with 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 IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, 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 intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. Upon review of the relevant evidence during the period on appeal, an August 2013 VA examiner noted that the Veteran reported worsening of his lumbar spine disability with age and that he has difficulty getting up and down. The Veteran further reported having flare-ups that resulted in low back pain which radiated down his legs four to five times a year and lasting about three days. He stated that the flare-ups limit him 100 percent. Evaluation of the spine showed his range of motion for forward flexion was limited at 70 degrees with pain starting at 70 degrees. His combined range of motion (CROM) was 170 degrees. He was able to perform the repetitive use testing with three repetition with no additional limitation in ROM. However, while the VA examiner noted that the Veteran has functional loss, functional impairment, and/or additional limitation or ROM after repetitive used caused by pain on swelling, there was no response on whether it resulted in additional loss in ROM. The VA examiner also noted that the Veteran pain significantly limited his functional ability during flare-ups but could not express in terms of ROM loss due to his inability to replicate a flare-up at the time of examination. The Veteran was provided with another VA examination in February 2016. In that February 2016 VA examination, an x-ray of the Veteran’s lumbar spine showed that his degenerative joint and disc disease increased from “moderate” to “significant,” and the doctor stated there was an overall worsening of degenerative changes. However, as stipulated to in the September 2019 JMPR, the February 2016 examination is inadequate because it did not comply with the holdings under Correia. Correia v. McDonald, 28 Vet. App. 158 (2016) (holding that, per 38 C.F.R. § § 4.59, in order to assess the effect of painful motion, range of motion tests for both passive and active motion, and in both weight-bearing and non-weight-bearing circumstances, should be done). Nonetheless, the Board finds that an x-ray conducted during the February 2016 VA examination is still probative evidence regarding the severity of the Veteran’s lumbar spine disability. Following a December 2020 Board remand, the Veteran was afforded another VA examination in October 2020. During that VA examination, the examiner noted a new diagnosis of IVDS and radiculopathy. The Veteran also reported flare-ups that occurred once or twice a week. He described the flare-ups as moderate and lasting a couple of hours precipitated by physical activities. He reported having functional loss/impairment described as inability to sit in one place, difficulty with prolonged standing, difficulty bending over, and difficulty getting on the floor. Examination of the lumbar spine showed his ROM for forward flexion was limited at 45 degrees and he had a CROM of 130 degrees. The VA examiner noted his decreased ROM interfered with normal ambulation and mobility. There was evidence of pain on weight bearing but not on non-weight bearing testing of the back. There was also objective evidence of pain on passive ROM testing of the back. The Veteran had moderately severe localized tenderness or pain on palpation of his low thoracic spine to his lumbar spine. He was able to perform repetitive use testing with at least three repetition without any additional loss in ROM or functional loss. While the Veteran was not examined during repeated use over time, the VA examiner stated that his pain and lack of endurance significantly limited his functional ability. The VA examiner stated that the Veteran experienced an additional loss in ROM for forward flexion being limited at 35 degrees with repeated use over time. Similarly, while the Veteran was not examined during a flare-up, the VA examiner stated that his pain, fatigue, and lack of endurance significantly limited his functional abilities during a flare-up. The VA examiner estimated that the Veteran’s forward flexion was additionally limited at 20 degrees during flare-ups. The VA examiner also noted that the Veteran had guarding and muscle spasm resulting in abnormal gait or abnormal spine contour. However, no muscle atrophy or ankylosis of the spine was noted on examination. The Veteran also had a diagnosis of IVDS but had not been prescribed bed rest in the past 12 months. Additionally, the VA examiner noted that the Veteran had mild radiculopathy of the right side, but his left side was not affected. The Veteran’s radicular pain resulted in mild intermittent pain, paresthesias/dysesthesias, and numbness. Based on the foregoing evidence, the Board finds that August 2013 VA examination is inadequate for evaluation of the Veteran’s lumbar spine. The VA examination does not comply with the holding of Correia, which requires that the joint be testing on passive or active ROM testing or weight-bearing or non-weight bearing testing. The VA examination further does not comply with the holdings in Sharp requiring that the VA examiner estimate, in terms of range of motion, the functional loss that would occur during flares. Sharp. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Additionally, the February 2016 VA examination is also inadequate because it did not comply with the holdings under Correia. As such, the Board finds that the October 2020 VA examination is the most probative evidence reflecting the severity of the Veteran’s lumbar spine disability throughout the period on appeal. The findings were based on examination of the Veteran and consideration was given to the Veteran’s report of flare-ups and functional loss/impairments. The VA examiner further provided an estimate of any additional loss in ROM during repeated use over time or during a flare-up. Moreover, the October 2020 VA examination performed in passive and active ROM testing and weight-bearing and non-weight bearing testing. With consideration of the October 2020 VA examination, February 2016 x-ray, and the Veteran’s credible reports of symptoms and limitations, the Board finds that, at most, his forward flexion was limited at 30 degrees or less throughout the period on appeal. This finding supports a 40 percent evaluation under DC 5237. The Board has considered whether he is entitled to a higher rating under DC 5237. However, the medical evidence fails to show that he has been diagnosed with unfavorable ankylosis of the thoracolumbar spine or of the entire spine. Even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected in the October 2020 VA examination would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. As such a rating of 50 percent and 100 percent is not warranted. The Board has further considered the Veteran’s lumbar spine disability under DC 5243 for IVDS. While the Veteran has a diagnosis of IVDS, the October 2020 VA examination indicated that he had not been prescribed bed rest in the past 12 months. Further review of his VA and private treatment records do not demonstrate that he has had any incapacitating episodes having a total duration of at least six weeks during the past twelve months. As such, the Veteran is not entitled to a higher rating under DC 5243. Regarding the Veteran’s neurological impairment, the Veteran has already been granted service connection for radiculopathy of the right lower extremity. The Board has further considered whether he would be entitled to radiculopathy of the left lower extremity. However, the lay and medical evidence of record does not indicate that he has any other neurological abnormality associated with his left lower extremity spine disability. As such, a separate rating for radiculopathy of the left lower extremity due to service-connected lumbar spine disability is not warranted. (Continued on the next page)   Accordingly, in resolving all doubts in favor of the Veteran, the Board finds that the Veteran’s lumbar spine disability warrants a 40 percent evaluation, but no higher, throughout the period on appeal. As such his claim for an increased rating in excess of 10 percent for a lumbar spine disability is granted. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Xiong, 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.