Citation Nr: 21010302 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 14-32 311A DATE: February 24, 2021 ORDER A 20 percent rating, but no higher, for a lumbar spine disability for the period prior to January 7, 2020, is granted. A rating greater than 20 percent for the period beginning on January 7, 2020, is denied. FINDING OF FACT For the period prior to January 7, 2020, the Veteran’s lumbar spine disability was manifested by muscle spasm severe enough to result in an abnormal gait. However, his lumbar spine disability has not been manifested by forward flexion of 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes of intervertebral disc syndrome at any time during the period on appeal. CONCLUSION OF LAW 1. Prior to January 7, 2020, the criteria for entitlement to a disability rating of 20 percent, but no higher, for the Veteran’s lumbar spine disability has been met. 38 U.S.C. §§ 1155; 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5237. 2. For the period beginning on January 7, 2020, the criteria for entitlement to a disability rating greater than 20 percent, for the Veteran’s lumbar spine disability has not been met. 38 U.S.C. §§ 1155; 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5237. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran serviced on active duty in the U.S. Air Force from March 1977 to December 1987. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The matter was previously before the Board in September 2018, at which time it was remanded for development. Development was adequately performed, and the case was returned to the Board for appellate review. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in March 2018. A transcript of that proceeding is associated with the claims folder. During the appeal period, the Veteran’s rating for his lumbar spine disability was increased in a May 2020 rating decision to 20 percent for the period beginning on January 7, 2020. As the assigned evaluations are less than the maximum available rating, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Duties to Notify and Assist The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board… to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). I. Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), 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. The evaluation of a service-connected disorder requires a review of a veteran’s entire medical history regarding that disorder. 38 U.S.C. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, the higher rating 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. Evidence to be considered in an appeal from an initial disability rating was not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In contrast, for an already established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). For both types of increased rating claims, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See Fenderson, 12 Vet. App. at 126-27; Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). Such separate disability ratings are known as staged ratings. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of “the normal working movements of the body,” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. The appeal period for the Veteran’s increased rating claim begins on September 27, 2011. 38 C.F.R. § 3.400(o)(2). The Veteran is in receipt of a 10 percent rating for his lumbar disability from September 27, 2011 to January 6, 2020, and a 20 percent rating thereafter. The Veteran contends that his lumbar spine disability warrants higher ratings. The Veteran’s lumbar spine disability is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5237. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic Code 5010 for arthritis, due to trauma and Diagnostic Code 5237 for lumbosacral strain indicate that the General Rating Formula for Diseases and Injuries of the Spine should be used to rate the disability. The General Rating Formula provides for a 10 percent evaluation when back disability results in 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. Back disability warrants a 20 percent rating where there is 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 is not greater than 120 degrees, or there is 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 evaluation is warranted for favorable ankylosis of the entire thoracolumbar spine or forward flexion of the thoracolumbar spine of 30 degrees or less. The only criterion which warrants an evaluation in excess of 40 percent for limitation of motion of the thoracolumbar spine is where there is unfavorable ankylosis of the thoracic spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating, and unfavorable ankyloses of the entire spine warrants a 100 percent rating. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). For VA compensation purposes, normal range of motion for the thoracolumbar spine is 90 degrees of forward flexion, 30 degrees of extension, 30 degrees of left and right lateral flexion, and 30 degrees of left and right lateral rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees, consisting of the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. 38 C.F.R. § 4.71a, General Rating Formal, Note (2) and Plate V. Moreover, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula, Note (5). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent evaluation is warranted for incapacitating episodes having a total duration of at least one week, but less than 2 weeks during the past 12 months. A 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as 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. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation of that segment. Id., Note (2). Turning to the evidence, the Veteran reported in January 2012 that he experienced severe back pain and muscle spasms, which causes him to fall down and interferes with his work. In July 2013, the Veteran was provided with a VA examination related to his lumbar spine disability. No diagnosis was noted on the examination report. The Veteran reported having continued back pain and residual symptoms after undergoing a lumbar discectomy in 2000. He reported that additional surgery is being considered due to numbness and loss of sensation in both feet. The examiner stated that the Veteran did not report having flare ups. Upon range of motion testing, the thoracolumbar spine had 90 degrees or greater of forward flexion, 20 degrees of extension, 20 degrees of lateral flexion bilaterally, and 30 degrees or greater of lateral rotation bilaterally. Pain was present in all planes of motion except right lateral rotation. The examiner stated that the Veteran’s abnormal range of motion itself and pain on movement contributed to functional loss after repetitive testing. However, the examiner concluded that there was no additional loss of function or range of motion with repetitive use testing. With the exception of radiculopathy, the examiner noted that the Veteran did not have any other neurological abnormalities or findings related to the thoracolumbar spine disability. The examiner also reported that there was no ankylosis or intervertebral disc syndrome (IVDS) in the spine. Regarding assistive devices, the examiner stated that the Veteran did not use any device as a normal mode of locomotion. Additionally, there was no related functional impairment of an extremity such than no effective function remained other than that which would be equally well-served by an amputation with prosthesis. Imaging studies were available, and the examiner concluded that the Veteran did not have a thoracic vertebral fracture. In terms of the impact that the Veteran’s lumbar spine disability had on his ability to work, the examiner concluded that the Veteran is able to stand or walk for about 15 minutes, but is unable to bend to do his usual occupation of carpentry. During his March 2018 Board hearing, the Veteran expressed his belief that the July 2013 VA examination was not accurate. He also reported that his symptoms worsened after the examination. He reported that he has experienced continuous back pain and nerve issues despite undergoing surgery, which he treats with medication (Flexeril and gabapentin) and spinal injections. The Veteran further reported that his pain is severe and that he has severe spasms that travel down his legs. He also reported that his range of motion is limited, noting that he cannot bend or pick up anything off the floor and he has difficulty twisting to sweep. With respect to his functioning, he reported that he cannot stand or walk for prolonged periods and has to stop due to pain. He also indicated that he wears a back brace all of the time. In January 2020, the Veteran was provided another VA examination. The examiner noted diagnoses of low back derangement, lumbar discectomy, spondylosis with facet arthropathy at L3-L4, lumbar fusion for degenerative disc disease and arthritis, and bilateral lower extremity lumbar radiculopathy. The Veteran reported that his back pain had worsened. The examiner stated that the Veteran reported having flare ups that consisted of pain with prolonged walking, sitting, standing, bending, and lifting. Range of motion testing showed that the Veteran had 50 degrees of forward flexion, 20 degrees of extension, 20 degrees of lateral flexion bilaterally, and 20 degrees of lateral rotation bilaterally. Pain continued to be present in each plane of motion, but the examiner stated that it did not result in or cause functional loss. However, the examiner reported that there was evidence of pain with weight-bearing. There was also objective evidence of localized tenderness, specifically moderate lumbar spine and paraspinal tenderness related to the lumbar fusion for degenerative disc disease and lumbosacral arthritis. With repetitive use testing, there was no additional loss function or range of motion. The examiner stated that the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time or functional ability with flare ups. The examiner opined that factors of pain would significantly limit the Veteran’s functional ability with repeated use over a period of time and during flare ups. Regarding both repetitive use and flare ups, the examiner concluded that the Veteran’s range of motion was reduced to 40 degrees of forward flexion, 10 degrees of extension, 15 degrees of lateral flexion bilaterally, and 15 degrees of lateral rotation bilaterally. The examiner further noted that the examination was not being conducted during a flare up or immediately after repetitive use over time. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. However, additional factors noted to contribute to disability included disturbance of locomotion and interference with prolonged sitting and standing due to pain. As with the prior examination, this examiner noted that the Veteran did not have neurological abnormalities or findings related to the thoracolumbar spine disability with the exception of radiculopathy. In addition, the examiner reported that the Veteran did not have ankylosis or IVDS of the spine. In terms of assistive devices, the Veteran was using a brace on a regular basis for his lumbar spine disability. The Veteran continued to have no related functional impairment of an extremity such that no effective function remained other than that which would be equally well-served by an amputation with prosthesis. The examiner noted that there was no presence of other pertinent findings. The examiner referenced an August 2008 magnetic resonance image (MRI) for findings of degenerative disc disease and facet arthritis in the lumbar spine. The examiner concluded that the Veteran did not have a thoracic vertebral fracture. In terms of the impact that the Veteran’s lumbar spine disability had on his ability to work, the examiner noted that the Veteran would have pain related to prolonged walking, sitting, standing, bending, and lifting. The examiner further concluded that there was objective evidence of pain when the back is used in non-weight bearing, but passive range of motion could not be performed or was not medically appropriate. Although the Veteran did not display muscle spasms in either examination, VA treating records indicate that the Veteran has been prescribed cyclobenzaprine for muscle spasms and back pain throughout the entire period on appeal, which is consistent with the Veteran’s reports. For example, a VA treating record from September 2011 reveals that the Veteran was actively being treated for lumbago and prescribed cyclobenzaprine for muscle spasms. Additional VA treating records from April and October 2012 note that the Veteran was treated for chronic low back pain and muscle spasms with cyclobenzaprine and the Veteran was wearing a back brace during these appointments. Additional records from February 2014 document complaints of worsening back pain and the Veteran exhibited positive straight leg raise testing on examination. Similarly, a treating record from April 2014 documents complaints of mid back and left flank pain, and the Veteran exhibited an abnormal gait on examination. Moreover, both VA examiners concluded that the Veteran’s lumbar spine disability affects his ability to walk. The July 2013 examiner noted that the Veteran cannot walk for more than 15 minutes at a time and the January 2020 examiner noted that disturbance of locomotion and interference with prolonged standing affects the Veteran’s ability to work. Based on the foregoing, the Board finds that the Veteran’s symptoms are manifested by muscle spasm severe enough to result in an abnormal gait for the entire period on appeal. Additionally, the Veteran’s symptoms have been manifested by forward flexion greater than 30 degrees but not greater than 60 degrees and combined range of motion not greater that 120 degrees beginning in January 2020. As such, a 20 percent rating is appropriate for the appeal period prior to January 7, 2020. However, an evaluation greater than 20 percent is not warranted for any portion of the appeal period. There has never been any showing of ankylosis at any level of the spine, and the Veteran’s forward flexion of the spine has never approached 30 degrees or less on testing. Further, according to the assessment of the January 2020 VA examiner, the Veteran’s thoracolumbar range of motion would not be expected to approach 30 degrees or less even with repetitive use over time or during flareups. Additionally, the Board notes that the Veteran has already been awarded separate evaluations for the surgical scar from his lumbar discectomy and for his bilateral lower extremity radiculopathy, and the Veteran has not appealed the disability ratings assigned. Thus, these issues are not before the Board at this time. The Board also notes that effective February 7, 2021, the spine regulations were amended to state that Diagnostic Code 5243 governing IVDS should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root; and that Diagnostic Code 5242 should apply to all other disc diagnoses. See 85 Fed. Reg. 76462 (Nov. 30, 2020) (effective 2/7/2021). The Board notes that this change does not impact the evaluation in this case as the Veteran does not have IVDS with evidence of incapacitating episodes that would warrant a compensable rating under Diagnostic Code 5243. In sum, the Board finds that a disability rating of 20 percent rating, but no higher, for the entire appeal period is warranted. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Beech, 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.