Citation Nr: 21011155 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 15-06 377 DATE: March 1, 2021 ORDER A rating of 40 percent, but no higher, for lumbosacral strain with degenerative disc and degenerative arthritis (lumbar spine disability) is granted. FINDING OF FACT For the entire period on appeal, the Veteran’s lumbar spine disability manifests orthopedic impairment with pain and limitation of motion most nearly approximating forward flexion to 30 degrees without ankylosis or incapacitating episodes requiring bed rest prescribed by a physician. CONCLUSION OF LAW The criteria for a rating of 40 percent, but no higher, for a lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (Code) 5242 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1985 to July 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2011 rating decision by the Department of Veterans Affairs (VA). This case was remanded in June 2018 for further development; it has since been re-assigned to the undersigned. The June 2018 Board remand included a remand order for the AOJ to issue a Statement of the Case (SOC) addressing the claims for an earlier effective date for radiculopathy of the sciatic nerve of the right lower extremity, radiculopathy of the sciatic nerve of the left lower extremity, radiculopathy of the femoral nerve of the right lower extremity, and radiculopathy of the femoral nerve of the left lower extremity. The remand order specified that the Veteran must perfect a timely appeal within 60 days of the issuance of the SOC. A SOC was issued in September 2020. The Veteran did not perfect an appeal within 60 days. Therefore, these issues are not before the Board at this time. The June 2018 Board remand directed the AOJ to obtain outstanding treatment records and obtain a new VA examination. The Board finds that the AOJ has substantially complied with the prior remand directives, to the extent possible. See Stegall v. West, 11 Vet. App. 268, 1998. By way of history, the Veteran was granted an increased rating of 20 percent for his lumbar spine disability in a February 1999 rating decision. The Veteran did not appeal the decision and new and material evidence was not received within the applicable appeal period. Thus, the decision became final. The next communication that can be considered a claim for an increased rating for the Veteran’s lumbar spine disability was received on July 8, 2010. Therefore, the “look-back” period for this matter is limited to July 8, 2009. The Veteran contends that his lumbar spine disability warrants a higher rating. He reported that he has to take Motrin three times per day and muscle relaxers to deal with the pain and frequently visits a chiropractor. He experiences painful motion twisting, bending, and moving. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Back disabilities are rated 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, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12-month period on appeal. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, Code 5243. As of February 7, 2021, Code 5243 should be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root. 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. 38 C.F.R. § 4.71a, Code 5243, Note (1). The evidence of record does not show that the Veteran has been prescribed bed rest to treat incapacitating episodes of his diagnosed IVDS. The August 2014 VA examiner noted that the Veteran has IVDS but has not had any incapacitating episodes over the past 12 months due to IVDS. The August 2017 VA examiner found that the Veteran has IVDS but has not had any episodes of acute signs and symptoms requiring bed rest prescribed by a physician and treatment by a physician in the past 12 months. The September 2020 VA examiner reported that the Veteran had IVDS; however, no episodes of bed rest were noted as being prescribed for treatment. The examiner noted that the Veteran had no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. At a November 2014 VA examination, the Veteran reported work absences three times that year due to flare-ups resulting in incapacitation with requirement of bed rest for more than 24 hours. The examiner later noted that the Veteran had IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A review of the VA treatment records and VA examination report of record shows that the Veteran was not prescribed bedrest by a physician, therefore, the Board finds that no incapacitating episodes were diagnosed. Because the prescription of bed rest for IVDS is a foundational requirement of a rating under this section of the rating schedule, the absence of any prescribed bed rest precludes a rating from being assigned under it. As such, here, a rating based on IVDS is not appropriate and the Veteran’s lumbar spine disability will thus be evaluated under the General Rating Formula for Diseases and Injuries of the Spine. Further, the Board notes that even if the medical evidence of record supported the November 2014 VA examination finding that the Veteran had IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, this would result in a 20 percent rating, the rating currently assigned to the Veteran’s lumbar spine disability. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when muscle spasm or guarding is 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 if forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is 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, Code 5242. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Consideration of a higher rating for functional loss, to include during flare ups, due to these factors accordingly is warranted for Diagnostic Codes predicated on limitation of motion. DeLuca v. Brown, 8 Vet. App. 202 (1995). An adequate orthopedic examination should record the range of motion for pain on active motion and passive motion and in weight-bearing and non-weight-bearing, address the necessary findings to evaluate functional loss during flare-ups, or clearly explain why the required testing cannot be completed or is not necessary. See Correia v. McDonald, 28 Vet. App. 158 (2016). An examination does not need to be conducted during an actual flare-up in order to account for additional functional impairment. Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). Instead, examiners are asked to estimate the functional impairment experienced during a flare-up, considering all competent evidence of functional loss that is available in the record. Id. The Board notes that a review of VA treatment records, private treatment records, and chiropractic records from 2009 to the present show that he reported worsening symptoms, mainly described as increased pain. The Veteran underwent five VA examinations during the appeal period. August 2010 VA examination In August 2010, the Veteran underwent a VA examination for his back condition. The Veteran was diagnosed with degenerative disc and degenerative arthritis disease of the lumbar spine. The Veteran reported dull, aching, squeezing, and pulling pain from 3 to 10 on the pain scale. His back pain was increased with bending, extension, and prolonged sitting, standing, and walking. The examiner noted decreased motion, stiffness, weakness, and spine pain. No incapacitating episodes of spine disease were noted. The Veteran reported using crutches three times a year. The Veteran’s thoracolumbar sacrospinalis was noted to have bilateral guarding, pain with motion, and tenderness, with no spasm, atrophy, or weakness. There was no abnormal gait or spine contour. On examination, range of motion measurements were as follows: flexion to 45 degrees; extension to 20 degrees; left lateral flexion to 25 degrees; left lateral rotation to 15 degrees; right lateral flexion to 30 degrees; right lateral rotation to 30 degrees. Pain was noted on active range of motion and following repetitive motion. There were no additional limitations after three repetitions of range of motion. Reflexes were 2+ for the ankles and knees. Sensory examination was normal. Motor examination was normal. Occupational effects include decreased mobility, problems with lifting and carrying, decreased strength, and pain. August 2014 VA examination At an August 2014 VA examination, the Veteran reported increased low back pain and radiculopathy symptoms. Surgical decompression was recommended to him, but the Veteran instead sought chiropractic care and physical therapy. The Veteran reported flare-ups occurring at least twice monthly and lasting anywhere from 1 to 10 days. On examination, range of motion measurements were as follows: flexion to 70 degrees, with painful motion beginning at 50 degrees; extension to 10 degrees, with painful motion beginning at 5 degrees; right lateral flexion to 20 degrees, with painful motion beginning at 15 degrees; left lateral flexion to 30 or greater degrees, with painful motion beginning at 30 or greater degrees; right lateral rotation to 30 or greater degrees, with painful motion beginning at 30 or greater degrees; and left lateral rotation to 30 or greater degrees, with painful motion beginning at 30 or greater degrees. Upon repetitive use testing with 3 repetitions, post-test forward flexion ended at 60 degrees; post-test extension ended at 10 degrees; post-test right lateral flexion ended at 20 degrees; post-test left lateral flexion ended at 30 or greater degrees; post-test right lateral rotation ended at 30 or greater degrees; and post-test left lateral rotation ended at 30 or greater degrees. Additional limitation in range of motion following repetitive use testing was noted, including less movement than normal, incoordination, pain on movement, and interference with sitting, standing, and/or weight-bearing. The Veteran had bilateral paraspinous tenderness most especially at the lumbosacral transition. The Veteran had muscle spasm and guarding not resulting in abnormal gait or abnormal spine contour. Muscle strength testing was normal. Deep tendon reflexes were 2+ for the ankles and knees. Sensory examination was normal. Straight leg raising test was negative. The Veteran was noted to have radicular pain. The Veteran did not have ankylosis of the spine. The examiner noted that the Veteran has IVDS, but has not had any incapacitating episodes over the past 12 months due to IVDS. The Veteran did not use any assistive devices. Arthritis was documented. The examiner noted that the Veteran’s spine disability requires him to modify certain work activities. November 2014 VA examination At a November 2014 VA examination, the Veteran reported work absences three times that year due to flare-ups resulting in incapacitation with requirement of bed rest for more than 24 hours. On examination, range of motion measurements were as follows: flexion to 40 degrees, with painful motion beginning at 30 degrees; extension to 15 degrees, with painful motion beginning at 15 degrees; right lateral flexion to 20 degrees, with painful motion beginning at 20 degrees; left lateral flexion to 20 degrees, with painful motion beginning at 20 degrees; right lateral rotation to 20 degrees, with painful motion beginning at 20 degrees; and left lateral rotation to 25 degrees, with painful motion beginning at 25 degrees. The Veteran was unable to perform repetitive use testing with 3 repetitions due to pain, fatigue, and anticipation of increased pain. Additional limitation in range of motion following repetitive use testing was noted, including less movement than normal, weakened movement, excess fatigability, pain on movement, and interference with sitting, standing, and/or weight-bearing, and lack of endurance. The Veteran had localized tenderness in the lumbar region. The Veteran did not have guarding. The Veteran had muscle spasm not resulting in abnormal gait or abnormal spine contour. Muscle strength testing was 4/5, active movement against some resistance, for hip flexion, knee extension, ankle plantar flexion, and ankle dorsiflexion. Deep tendon reflexes were 0 for the bilateral ankles and 1+ for the bilateral knees. Sensory examination was normal. Straight leg raising test was positive. Radiculopathy was noted. The Veteran did not have ankylosis of the spine. The Veteran was noted to have IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. The Veteran did not use any assistive devices. Arthritis was documented. The examiner noted that the Veteran’s lumbar spine disability required him to switch jobs. August 2017 VA examination At an August 2017 VA examination, the Veteran reported persistent daily back pain, with intermittent radiating pain. The Veteran reported flare-ups with increased pain and limited function. On examination, range of motion measurements were as follows: flexion to 50 degrees; extension to 20 degrees; right lateral flexion to 30 degrees; left lateral flexion to 30 degrees; right lateral rotation to 30 degrees; and left lateral rotation to 30 degrees. Pain was noted on examination. There was evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion. The examiner noted that the examination was not conducted after repetitive use over time, but the examination findings were medically consistent with the Veteran’s statements describing functional loss over time. Pain, fatigue, and lack of endurance significantly limited the Veteran’s functional ability with repeated use over a period of time. The exam was conducted during a flare-up. Pain, fatigue, and lack of endurance significantly limited the Veteran’s functional ability with flare-ups. The Veteran did not have guarding or muscle spasm. Muscle strength testing was normal. Deep tendon reflexes were 1+ in the knees and ankles. Sensory examination was normal. Straight leg raising test was negative. Radiculopathy was noted. The Veteran did not have ankylosis of the spine. The examiner noted that the Veteran has IVDS, but has not had any episodes of acute signs and symptoms requiring bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran did not require an assistive device. Arthritis was documented. The examiner noted that the Veteran’s lumbar spine disability affects his ability to lift, bend, and perform prolonged weight-bearing. September 2020 VA examination At a September 2020 VA examination, the Veteran reported constant radiating pain from his back to his extremities. The Veteran stated that he can spend around 15 to 30 minutes in an activity and then his back cramps up so severely he has to sit down and rest. The Veteran sees a chiropractor weekly and sleeps in a chair because sleeping in a bed is difficult. The Veteran reported flare-ups lasting 2 to 3 weeks every month. The flare-ups start as a throbbing pain and then turn into shooting, sharp pains that go down his leg. The Veteran reported functional loss including an inability to run, lie down, exercise, bend, kneel, pick up items, get in and out of bed, travel long distance, go camping, or do yard work. On examination, range of motion measurements were as follows: flexion to 50 degrees; extension to 10 degrees; right lateral flexion to 20 degrees; left lateral flexion to 20 degrees; right lateral rotation to 15 degrees; and left lateral rotation to 15 degrees. Pain was noted on examination for forward flexion, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation. Pain with weight bearing was shown. Objective evidence of localized tenderness and palpation was noted. Repetitive use testing was conducted with no additional loss of range of motion. The examiner noted that the examination was not conducted after repetitive use over time or during a flare-up, but the examination findings were medically consistent with the Veteran’s statements describing functional loss over time and flare-ups. Functional loss was described in range of motion as follows: flexion to 45 degrees; extension to 5 degrees; right lateral flexion to 10 degrees; left lateral flexion to 15 degrees; right lateral rotation to 10 degrees; and left lateral rotation to 15 degrees. The Veteran was noted to not have guarding or muscle spasms. Muscle strength testing was normal for the knees, ankles, and great toes. The Veteran had 4/5 strength, active movement against some resistance, in the hips. The Veteran did not have muscle atrophy. Deep tendon reflexes were 2+ for the ankles and knees. The Veteran had decreased sensation to light touch in the left L2, right L3/4, and right L4/L5/S1. Straight leg testing was positive. The Veteran had mild intermittent radicular pain of the right lower extremity and moderate intermittent pain and numbness of the left lower extremity. The bilateral sciatic nerve was noted to be affected. The Veteran did not have ankylosis of the spine. No other neurological abnormalities were diagnosed such as bowel or bladder problems. IVDS was diagnosed; however, no episodes of bed rest were noted as being prescribed for treatment. The examiner noted that the Veteran had no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran did not require the use of an assistive device. Arthritis was documented in imaging studies. The Veteran’s spine disability impacts his ability to work due to his inability to bend, grip, balance, lift, sit or stand for long periods, run, flex forward, bend backward, and drive long distance. It was noted that there was no objective evidence of pain when the spine is in non-weight-bearing. Passive range of motion of the spine was not performed as it is not feasible to do this in a safe and reasonable manner. Analysis 38 C.F.R. § 4.71a clearly requires that a rating higher than 20 percent for a thoracolumbar spine disability can only be assigned if, at a minimum, the Veteran exhibits forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. At no time during the appeal period has the Veteran exhibited flexion of his lumbar spine limited to 30 degrees or less. However, the most recent examiner to notate objective evidence of painful motion, the November 2014 VA examination, found that the Veteran’s forward flexion range of motion resulted in pain beginning at 30 degrees. After a review of the evidence of record the Board finds that a 40 percent disability rating is warranted for the entire period on appeal with respect to the Veteran’s lumbar spine disability based on the point during motion testing where the Veteran experienced pain in flexion, in addition to the numerous functional loss documented throughout the appeal period. The provisions of 38 C.F.R. § 4.40 and § 4.45 concerning functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, and flare-ups as cited in DeLuca v. Brown and Mitchell v. Shinseki, have been considered and applied under 38 C.F.R. § 4.59. While the Veteran reported experiencing pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). 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. Id. at 43; see 38 C.F.R. § 4.40. Here, the November 2014 examination suggests that flare-ups so limit the Veteran’s range of motion that forward flexion would be functionally limited to 30 degrees or less. Further, throughout the appeal period, the Veteran has consistently reported and been assessed with decreased mobility; problems lifting and carrying; problems bending and kneeling; and an inability to perform prolonged standing, walking, and sitting. The Board has considered the Veteran’s lay statements regarding the functional impact of his lumbar spine disability. The Veteran is competent to report his own observations with regards to the severity of his lumbar spine disability, including reports of pain, weakness, and limited mobility. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds his statements to be credible and consistent with the 40 percent rating now assigned. Accordingly, the Board finds that the Veteran’s symptoms more nearly approximate the rating criteria for a 40 percent under Code 5242. The weight of the evidence also indicates that the Veteran’s lumbar spine disability has not been so functionally limited as to warrant a rating in excess of the now assigned 40 percent rating. At the VA examinations conducted in August 2014, November 2014, August 2017, and September 2020, as well as a review of VA treatment records, the Veteran did not demonstrate ankylosis of the spine. Although the Board must consider functional factors when determining the impairment manifested by orthopedic disabilities, the provisions of 38 C.F.R. § 4.40 and § 4.45 are not for consideration where, as here, the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); DeLuca v. Brown, 8 Vet. App. 202 (1995). Therefore, the Board cannot conclude that the Veteran’s disability most nearly approximates ankylosis when he clearly retains some useful motion of the thoracolumbar spine. The Board finds that the competent evidence of record does not demonstrate ankylosis at any time during the appeal period, and a rating in excess of 40 percent is not warranted. The preponderance of the evidence of record is also against disability rating in excess of 40 percent for the service-connected lumbar spine disability under the criteria for evaluating IVDS. As noted previously, there is no supported medical evidence of IVDS where there are incapacitating episodes (as defined by regulation) having a total duration of at least six weeks during a 12-month period on appeal -- the criteria necessary for a 60 percent rating under IVDS. The evidence of record does not show that the Veteran has been prescribed bed rest to treat incapacitating episodes of his diagnosed IVDS. Even considering the November 2014 VA examination note that the Veteran had IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, this would result in a 20 percent rating. The Board further finds that a staged schedular rating for the service-connected lumbar back disability is not warranted as the symptomatology associated with this disability has not demonstrated a disability rating in excess of 40 percent throughout the current period of appeal. In sum, the Veteran’s lumbar back disability manifests orthopedic impairment that is properly evaluated as 40 percent disabling throughout the appeal period. The Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the grant of a higher schedular rating. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. The Board has limited the discussion above to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Kerner, 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.