Citation Nr: 21010416 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 09-11 954 DATE: February 24, 2021 ORDER Entitlement to a disability rating in excess of 40 percent from January 22, 2009 for degenerative disc disease (DDD) of the lumbar spine (for payment of accrued benefits only) is denied. FINDING OF FACT During the appeal period, the Veteran's lumbar spine DDD was manifested by functional impairment consisting of subjective complaints of pain and objective limitation of motion, without ankylosis of the thoracolumbar spine. Incapacitating episodes have not been shown, and the Veteran received separate ratings for neurologic abnormalities associated with the back disability. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 40 percent from January 22, 2009 for DDD of the lumbar spine (for payment of accrued benefits only) have not been met. 38 U.S.C.§§ 1155, 5107; 38 C.F.R. §§ 3.321(b), 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty from May 1956 to March 1958. The Veteran passed away in November 2014 during the pendency of this appeal. The Veteran’s surviving spouse has been substituted as the Appellant by the Regional Office (RO) by way of an August 2016 decision. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2007 rating decision of a RO of the Department of Veterans Affairs (VA). By way of history, the Veteran was initially granted service connection for his lumbar spine condition in an April 2003 rating decision by the Agency of Original Jurisdiction (AOJ). The Veteran later filed a claim for an increased disability rating in May 2007, from which this appeal follows. Notably, in a March 2009 statement of the case (SOC), the AOJ increased the Veteran’s disability rating from 20 percent to 40 percent, effective January 22, 2009. The Veteran continued to appeal this rating. Throughout the course of this appeal, this matter has been before both the Board and the United States Court of Appeals for Veterans Claims (Court) on multiple previous occasions. First, in May 2010 the Board denied an increased rating for the Veteran’s service-connected lumbar spine condition. Subsequently, the Veteran appealed this decision to the Court. In November 2010, the Veteran and VA filed a Joint Motion for Partial Remand (JMPR) to vacating the Board’s May 2010 denial. The Court’s order memorializing the JMPR was issued in December 2010 and the claim was remanded to the Board. As a result, in July 2011, the Board remanded the claim to the AOJ for further evidentiary development. Following that development, the claim was returned to the Board and in August 2014, the Board once again denied entitlement to a disability rating in excess of 40 percent for the Veteran’s lumbar spine disability. The Veteran again appealed this denial to the Court, and in October 2015, the Veteran and VA filed another JMPR. The Court issued an order in October 2015 granting the JMPR and vacating the Board’s decision. Thus, in August 2016, the Board remanded the claim again in accordance with the JMPR and directed the AOJ to obtain an adequate VA addendum medical opinion. The AOJ obtained that opinion in October 2016, and the claim was returned to the Board. Subsequently in June 2017, the Board again denied entitlement to a disability rating in excess of 40 percent from January 22, 2009. The Court issued a decision in September 2018 vacating the June 2017 Board denial, citing concerns about the Board’s decision related to Sharp v. Shulkin, 29 Vet. App. 26 (2017), and ultimately remanding the claim for a new Board opinion. From there, the claim returned to the Board in April 2019, at which time the Board remanded the claim to the AOJ to obtain an addendum medical opinion addressing the Veteran’s functional impairment during flare-ups of his lumbar spine disability, consistent with Sharp. Such opinion was obtained in October 2019 and the claim was returned to the Board. However, the Board found in a July 2020 decision that there had not been substantial compliance with the Board’s April 2019 remand directives and as a result, another remand was required. As such, the Board remanded the claim to the AOJ, and an additional addendum opinion was obtained in August 2020. The claim has presently been returned to the Board. In consideration of the appeal, the Board finds that there has been substantial compliance with the July 2020 remand directives and will proceed with appellate review. Entitlement to a disability rating in excess of 40 percent from January 22, 2009 for degenerative disc disease of the lumbar spine (for payment of accrued benefits only) is denied. The Appellant seeks entitlement to a disability rating in excess of 40 percent from January 22, 2009 for the Veteran’s service-connected lumbar spine condition. Disability ratings are determined by the application of a schedule of ratings, which are based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. The governing regulations provide that the higher of two evaluations will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. A request for an increased rating is to be reviewed in light of the entire relevant medical history. See generally 38 C.F.R. § 4.1; Payton v. Derwinski, 1 Vet. App. 282, 287 (1991). Moreover, disabilities may be rated by analogy to a closely related disease where the functions affected, and the anatomical location and symptomatology are closely analogous. 38 C.F.R. §§ 4.20, 4.27. For disabilities evaluated based on limitation of motion, VA is required to apply the provisions of Sections 4.40 and 4.45 pertaining to functional impairment. 38 C.F.R. §§ 4.40, 4.45. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain during flare-ups and after repetitive use over time. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 208 (1995); 38 C.F.R. § 4.59. Also, "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of" 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). 38 C.F.R. § 4.59 states that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." As such, pursuant to Correia, an adequate VA joints examination must, wherever possible, include range of motion testing on active and passive motion and in weight-bearing and nonweight-bearing conditions. Furthermore, a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. The rating for the Veteran's lumbar spine disability has been assigned under 38 C.F.R. § 4.71a, DC 5243, degenerative disc disease of the lumbosacral spine. In this regard, the criteria for rating all spine disabilities is set forth in a General Rating Formula for Diseases and Injuries of the Spine. The General Rating Formula for Diseases and Injuries of the Spine holds that for DCs 5235 to 5243, a rating of 100 percent is warranted when there is unfavorable ankylosis of the entire spine. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted when there is unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. Lesser ratings are also available. The criteria also include the following provisions, a relevant: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (5): 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 neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Intervertebral Disc Syndrome (IVDS) (preoperatively or postoperatively) may be evaluated 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 evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating IVDS Based on Incapacitating Episodes provides for a 60 percent rating when there are incapacitating episodes of IVDS having a total duration of at least six weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least four weeks, but less than six weeks during the past 12 months. Lesser ratings are also available. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method resulted in the higher evaluation. Evidence relevant to the level of severity for the Veteran’s lumbar spine disability from January 22, 2009 includes multiple VA examinations and accompanying reports, as well as private treatment records. The Veteran was afforded a VA examination in January 2009. During the examination, the Veteran described his condition as “progressively worse” since the onset. The Veteran indicated his symptoms including a mild, but constant, achy pain in his low back that radiated down to his buttocks and occasionally shooting into the left leg. The Veteran reported flare-ups of his lumbar spine condition, indicating that lifting or walking for more than three minutes can cause his back pain to flare-ups. The Veteran indicated he experienced roughly three to four flare-ups per week, and that they lasted roughly two to three hours each time. The Veteran also reported daily use of a cane for assistance in ambulation since 2004. Upon examination, the VA examiner noted that the Veteran exhibited antalgic gait, but no abnormal spine curvatures. The VA examiner indicated that the Veteran had no ankylosis of the spine. Upon range of motion testing, the VA examiner noted that the Veteran’s flexion was limited to 15 degrees, extension was limited to 5 degrees, left lateral flexion limited to 5 degrees, left lateral rotation limited to 15 degrees, right lateral flexion limited to 10 degrees and right lateral rotation limited to 15 degrees. The examiner noted objective evidence of pain during the active range of motion. The VA examiner indicated that there were not additional limitations after repetitions of range of motion. The Veteran was later afforded a VA examination in August 2011. The Veteran reported that he experiences low back pain daily but denied flare-ups of the lumbar spine. Upon range of motion testing, the VA examiner indicated that the Veteran’s forward flexion was limited to 15 degrees, with pain; extension was limited to 5 degrees with pain; right lateral flexion limited to 5 degrees with pain; left lateral flexion limited to 15 degrees with pain; right lateral rotation was limited to 15 degrees with pain, and left lateral rotation was limited to 10 degrees with pain. The VA examiner noted that the Veteran had no additional limitation in range of motion following repetitive use testing. The VA examiner also noted radiculopathy in the bilateral lower extremities during this examination but denied any other neurologic abnormalities. Regarding IVDS, the VA examiner indicated that the Veteran did not exhibit IVDS of the lumbar spine. The VA examiner did not address ankylosis. The Veteran was subsequently afforded a VA examination in May 2012. The Veteran reported flare-ups of his lumbar spine condition, indicating that he had difficulty with walking and standing for prolonged periods of time. Upon range of motion testing, the VA examiner indicated that the Veteran’s forward flexion was limited to 20 degrees, with evidence of painful motion beginning at 5 degrees; extension was limited to 10 degrees with evidence of painful motion beginning at 5 degrees; right and left lateral flexion was limited to 10 degrees with pain; and right and left lateral rotation was limited to 10 degrees with pain. The Veteran was able to perform repetitive use testing, and following the test, his forward flexion ended at 20 degrees; extension ended at 10 degrees; and lateral flexion and rotation ended at 10 degrees, indicating that the Veteran had no additional limitation in range of motion following repetitive use testing. The VA examiner reported that the Veteran had guarding or muscle spasms of the lumbar spine resulting in abnormal gait. The VA examiner denied that the Veteran had IVDS of the thoracolumbar spine. The VA examiner did not address ankylosis. An addendum medical opinion and clarification were obtained in September and October 2016 in response to the August 2016 Board remand. The VA examiner stated after a thorough review of the available medical evidence that to estimate the degree of additional range of motion loss or ankylosis due to any pain, weakened movement, excess fatigability, or incoordination would be “speculative.” Further, the VA examiner stated that an opinion addressing whether there was significantly limited functional ability on the part of the Veteran during flare-ups or following repeated use (in terms of range of motion loss or ankylosis) was “impossible to give, because the Veteran was not evaluated during a flare-up or after repeated use over a period of time. Degree of additional range of motion loss is impossible to determine when it is not witnessed.” The VA examiner also opined that it would be “speculative” to indicate whether any additional restriction might be expected given the amount of impairment documented by the objective findings. As mentioned above, the Court issued a decision in September 2018 vacating the June 2017 Board denial of the Veteran’s claim, citing concerns about the Board’s decision related to Sharp v. Shulkin, and ultimately remanding the claim for a new Board opinion. The Board then remanded the claim to the AOJ in April 2019. Pursuant to the April 2019 Board remand, an addendum medical opinion was obtained in October 2019. The October 2019 VA examiner indicated that the Veteran’s DDD of the lumbosacral spine was severe per medical records, with major functional impairment as the Veteran could not stand for more than a couple of minutes, had trouble walking more than 1/5 of a mile, and issues with lifting. The VA examiner stated “[i]n his last documented exam, [the Veteran] described flare ups with functional effect while walking or standing that produced severe pain and repeated use over time caused flare-ups with respective functional effect. However, any additional information, including ROM, would be speculative because the patient is not observed during flare-ups, neither after use over a period of time, and it is a medical principle that a sign has to be observed in order to be measured.” The matter was then remanded again by the Board in July 2020 to obtain an addendum opinion containing estimates regarding the loss of function in terms of degrees of range of motion during flare-ups or from overuse. As a result, an addendum medical opinion was obtained in August 2020. The August 2020 examiner indicated that based upon the Veteran’s medical history reflected in his previous examinations, “it is probable that the Veteran was functionally limited to 10 degrees in flexion, zero to 10 degrees in extension, and five degrees for all other planes of motion. For repetitive use, short of a flare, it is likely that the Veteran did not lose much more functional capacity unless the repetitive use initiates a flare… There is no ankylosis and a flare up would no induce ankylosis. Ankylosis is defined as abnormal stiffening and immobility of a joint due to fusion of the bones. It requires imaging to confirm and the Veteran has no radiographic evidence of ankylosis. Furthermore, by definition, the Veteran’s range of motion in all planes rendered the question moot. Fusion, or ankylosis, is clearly not present. In a severe flare, the Veteran [would be] likely to exhibit extremely limited motion in all plans, but that would not constitute ankylosis.” Private treatment records are of record from a spine center for the Veteran’s treatment from April 2014 to November 2014. The records reflect that the Veteran sought treatment for chronic pain management as a result of his lumbar spine disability. The private treatment provider described the Veteran’s pain as “moderate severe.” The private treatment provider indicated that the Veteran’s pain would worsen with walking, sitting, or lifting. See e.g., private treatment records receipt date November 25, 2020. Given the evidence of record, the Board finds that a disability rating greater than 40 percent for the Veteran's DDD of the lumbar spine is not warranted. As above, a rating higher than 40 percent based on orthopedic impairment requires a finding of ankylosis. Ankylosis is defined in general as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Colayong v. West, 12 Vet. App. 524 (1999) (citing Dorland's Illustrated Medical Dictionary (28th ed. 1994) at 86). For VA compensation purposes, unfavorable ankylosis is a condition in which the 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 neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). There is no evidence of record that the Veteran's spine was fixed in position or ankylosed for the period on appeal. Significantly, the Veteran had flexion to 15 degrees (with and without pain) at worst during the examinations of record and it was estimated by the August 2020 VA examiner that the Veteran’s flexion was limited to 10 degrees upon repetition/during flare-ups. As the August 2020 VA examiner indicated, while the Veteran’s ROM may have been extremely limited at times, there is no evidence to support a finding of complete ankylosis of the thoracolumbar spine. The Board has also considered the Veteran's functional impairment due to pain and other factors. Significantly, while the weight of VA examiners indicated that pain significantly limited functional ability with repeated use over a period of time and during flare-ups, this was expressed by the August 2020 VA examiner’s estimate in terms of lumbar flexion to 10 degrees. In other words, even considering the Veteran's complaints of pain and stiffness, there is no evidence that these symptoms effectively result in ankylosis of the lumbar spine. As such, the Board finds that the DeLuca factors provide no basis for assignment of any higher rating for the Veteran's lumbar spine disability. With regard to Note 1 of the General Rating Formula, as discussed in more detail below, the Veteran is already in receipt of separate disability ratings for associated neurological impairment, to include radiculopathy of the bilateral lower extremities. Therefore, the Board finds that disability rating greater than 40 percent for a lumbar spine disability is not warranted. Extraschedular Rating for Lumbar Spine Disability The Veteran’s representative also raised the issue of entitlement to an extraschedular rating for his current lumbar spine disability. See e.g., November 17, 2011 third party correspondence. Under 38 C.F.R. § 3.321(b)(1), ratings shall be based, as far as practicable, upon the average impairments of earning capacity. To accord justice to the exceptional case where the schedular evaluation is inadequate to rate a single service-connected disability, the Director of Compensation Service or his or her delegate is authorized to approve on the basis of the criteria set forth in paragraph 38 C.F.R. § 3.321(b), an extra-schedular evaluation commensurate with the average impairment of earning capacity due exclusively to the disability. The governing norm in these exceptional cases is a finding by the Director of Compensation Service or delegatee that application of the regular schedular standards is impractical because the disability is so exceptional or unusual due to such related factors as marked interference with employment or frequent periods of hospitalization. See 82 Fed. Reg. 57,830 (Dec. 8, 2017) (revising 38 C.F.R. § 3.321(b)(1) to clarify that extraschedular evaluations are only warranted for a single service-connected disability, and not for the combined effect of two or more service-connected disabilities). In Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff’d sub nom., Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009), the Court outlined the framework for determining entitlement to an extraschedular evaluation. First, the Board must determine whether the evidence “presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.” Thun, 22 Vet. App. at 115. This obliges the Board to compare “the level of severity and symptomatology of the claimant’s service-connected disability with the established criteria found in the rating schedule for that disability.” Id. at 115. When this requirement is satisfied, the Board must then determine whether the Veteran’s exceptional disability picture exhibits other related factors such as “marked interference with employment” or “frequent periods of hospitalization.” Id. at 116 (quoting 38 C.F.R. § 3.321(b)(1)). If both these inquiries are answered in the affirmative, the Board must refer the matter to the Compensation Service Director for the third inquiry—a determination of whether, to accord justice, the Veteran’s disability picture requires the assignment of an extraschedular evaluation. Id. at 116; see generally Todd v. McDonald, 27 Vet. App. 79, 89-90 (2014); Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009) (outlining the “elements that must be established before an extraschedular rating can be awarded”). Regarding the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. The Veteran has been assigned a rating which contemplates pain, stiffness, muscle spasm, limited motion, tenderness to palpation, less movement than normal, pain on movement, interference with standing, sitting, and/or weight bearing, and use of a cane. While such symptoms are not specifically mentioned under the rating criteria, such symptoms were taken into account in assigning the 40 percent disability rating. When comparing this disability picture with the symptoms contemplated by the Schedule, the Board finds that the Veteran's symptoms are more than adequately contemplated by his current disability rating. He has not described symptoms that fall outside of the rating criteria. Further, the currently assigned 40 percent rating criteria under DC 5243 also contemplates any resulting increased absenteeism, tardiness, and difficulties with occupational duties associated with lumbar spine degenerative joint disease or DDD. See 38 C.F.R. § 4.1 ("Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability); see also 38 C.F.R. § 3.321(a) ("[t]he provisions contained in the rating schedule will represent as far as can practicably be determined, the average impairment in earning capacity in civil occupations resulting from disability."). Thus, the Board finds that the Veteran’s service-connected lumbar spine condition does not satisfy the first criteria for the assignment of an extraschedular rating, as the evidence does not demonstrate that his disability has produced an exceptional or unusual disability picture. Accordingly, an extraschedular rating for the Veteran’s service-connected lumbar spine disability is not warranted. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. M. Lowman, 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.