Citation Nr: 21011333 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 15-29 923 DATE: March 1, 2021 ORDER Entitlement to an initial 20 percent rating, but no higher, for intervertebral disc syndrome (IVDS) of the lumbar spine prior to December 17, 2019 is granted. Entitlement to an increased rating in excess of 20 percent for IVDS of the lumbar spine from December 17, 2019 is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, prior to December 17, 2019, the Veteran’s lumbar spine was manifest by forward flexion limited to 50 degrees. 2. From December 17, 2019, the Veteran’s DDD of the lumbar spine is manifest by forward flexion limited to 50 degrees. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial 20 percent rating, but no higher, for IVDS of the lumbar spine prior to December 17, 2019 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 2. The criteria for entitlement to an increased rating in excess of 20 percent for IVDS of the lumbar spine from December 17, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2002 to June 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) who is no longer available to adjudicate appeals. A transcript of the hearing is in the record. In December 2020, the Board advised the Veteran of the January 2019 VLJ’s unavailability. The Veteran was notified of her right to a hearing before a VLJ who would decide the claim. The letter advised the Veteran to respond within 30 days. The Veteran did not respond. In July 2019, the Board remanded the appeal to the RO for additional action. There was substantial compliance with the Board’s July 2019 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Additionally, in July 2019 the Board remanded the perfected claim of entitlement to service connection for right and left lower extremity neuropathy. In an August 2020 rating decision, the RO granted the claims, which constitutes a full award of the benefit sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of “downstream” issues such as the compensation level assigned for the disability or the effective date of service connection). Thus, the Board finds these claims are no longer before the Board. Increased Rating The Veteran contends that she is entitled to a higher rating because of her pain and stiffness associated with her lumbar spine disability. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Prior to December 17, 2019 the Veteran’s lumbar spine disability was rated under Diagnostic Code 5237. Since December 17, 2019, the Veteran’s lumbar spine disability is rated under Diagnostic Code 5243, for intervertebral disc syndrome (IVDS). Diagnostic Code 5243 provides that 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. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent 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. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. For VA compensation purposes, 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 combined normal range of motion of the thoracolumbar spine is 240 degrees. Id. at Note 2. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Prior to December 17, 2019. Here, the Board finds the Veteran’s lumbar spine was limited to 50 degrees in forward flexion warranting a 20 percent rating but no higher. The Veteran was afforded VA examination in August 2012. The examiner diagnosed the Veteran with degenerative disc disease of the lumbar spine. The Veteran reported flare-ups that were described as with significant pain with walking and standing longer than 20 minutes. Initial range of motion was noted as follows: forward flexion was limited to 80 degrees with objective evidence of painful motion beginning at 80 degrees; extension was limited to 10 degrees with objective evidence of painful motion beginning at 10 degrees; right lateral flexion was limited to 10 degrees with objective evidence of painful motion beginning at 10 degrees; left lateral flexion was limited to 10 degrees with objective evidence of painful motion beginning at 10 degrees; right lateral rotation was limited to 10 degrees with objective evidence of painful motion beginning at 10 degrees; left lateral rotation was limited to 15 degrees with objective evidence of painful motion beginning at 15 degrees. The Veteran’s range of motion was not noted during repetitive-use testing as the Veteran was not examined. However, the examiner noted that there was no additional limitation following repetitive-use testing. Less movement than normal, pain on movement, disturbance of locomotion and interference with sitting, standing and/or weightbearing were listed as factors contributing to the Veteran’s functional loss. There was mild tenderness at the mid-thoracic spine with point tenderness at L5-S1. There was no guarding or muscle spasm of the thoracolumbar spine. Muscle strength was normal in the bilateral hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion and great toe extension. There was no muscle atrophy. Deep tendon reflexes were hypoactive in the bilateral knee and ankle. Sensation to light touch was normal in the bilateral upper anterior thigh (L2), thigh/knee (L3/4), lower leg/ankle (L4/L5/S1) and foot/toes (L5). The examiner noted the Veteran had loss of vibratory and monofilament sensation in both little toes of the feet with unknown etiology. Straight leg raising test was negative in the right and left leg. There was no radicular pain or any other sign or symptoms due to radiculopathy or neurologic abnormalities. The Veteran had intervertebral disc syndrome (IVDS) without any incapacitating episodes over the past 12 months. The Veteran did not use any assistive devices. The Veteran’s lumbar spine disability did not require amputation with prosthesis and there were no scars associated with the lumbar spine disability. Diagnostic testing revealed the Veteran did not have arthritis or a vertebral fracture. The examiner noted diagnostic test revealed very mild degenerative disc change at L5-S1. The Veteran’s lumbar spine disability did impact her ability to work as the Veteran was a part-time cook and she had to take frequent periods of time to sit down and rest and after work she was unable to move about for several hours. VA physical therapy medical treatment records from April 2012 reflect the Veteran underwent evaluation for her lumbar spine. During that time it was noted that forward flexion was limited to 50 degrees; extension was limited to 20 degrees; left and right lateral flexion was limited to 25 degrees; left and right lateral rotation were noted with pain only. After review of the probative evidence of record and resolving reasonable doubt in the Veteran’s favor, the Board finds the Veteran’s lumbar spine disability was manifested by forward flexion limited to 50 degrees as indicated in the April 2012 VA medical treatment record. The August 2012 VA examination inadequate as the examination report does not indicate that the Veteran was tested for repetitive-use and the reasoning as to why she was not tested. Additionally, even though the Veteran appeared not to have been tested on repetitive-use, the examiner indicated the Veteran did not have any additional limitation in range of motion following repetitive-use testing but indicated that Veteran had less movement than normal, pain on movement, disturbance of locomotion and interference with sitting, standing and/or weight-bearing. These findings appear contradictory and are hot probative as to an adequate depiction of the Veteran’s lumbar spine disability. Thus, the Board finds the April 2012 VA medical treatment record is more probative and provides an adequate depiction of the severity of the Veteran’s lumbar spine disability prior to December 17, 2019. The Board further finds a rating in excess of 20 percent is not warranted as the probative evidence of record has not demonstrated forward flexion of the lumbar spine limited to 30 degrees or less or favorable ankylosis of the entire lumbar spine. Accordingly, an initial 20 percent rating, but no higher, is granted. From December 17, 2019 The Veteran’s lumbar spine was limited to 50 degrees in forward flexion with guarding and muscle spasm of the lumbar spine that resulted in abnormal gait or abnormal spinal contour and does not warrant a rating in excess of 20 percent. The Veteran was afforded an additional VA examination in December 2019. The examiner noted the Veteran’s reports of flare-ups which consisted of daily moderate to severe pain doing any daily activity. The Veteran described her functional loss or impairment as being with pain, weakness and stiffness which limited low back movement affecting sitting, standing, walking and climbing. Initial range of motion was noted as follows: forward flexion limited to 50 degrees, extension limited to 10 degrees, right and left lateral flexion limited to 20 degrees and right and left lateral rotation limited to 30 degrees. Pain and stiffness were noted as contributing to functional loss in all ranges of motion. There was evidence of pain with weight bearing and the Veteran’s thoracic and lumbar spine were tender bilaterally on sacral iliac joints and bilaterally on both thoracic and lumbar muscles with spasm. There was no additional loss of function or range of motion after three repetitions. Pain, fatigue, weakness, lack of endurance and incoordination significantly limited functional ability with repeated use over a period of time. Range of motion was noted as follows: forward flexion was limited to 50 degrees, extension was limited to 10 degrees, right and left lateral flexion was limited to 20 degrees and right and left lateral rotation was limited to 30 degrees. The examination was conducted during a flare-up and pain, fatigue, weakness, lack of endurance and incoordination were noted to significantly limit functional ability. Range of motion during the flare-up was noted as follows: forward flexion was limited to 50 degrees; extension was limited to 10 degrees; right and left lateral flexion was limited to 20 degrees; right and left lateral rotation was limited to 30 degrees. There was guarding and muscle spasm of the lumbar spine that resulted in abnormal gait or abnormal spinal contour caused by pain and stiffness. Muscle strength was with active movement against some resistance in the bilateral hip flexion, knee extension, ankle dorsiflexion and great toe extension and normal in the bilateral ankle plantar flexion. There was no muscle atrophy. Deep tendon reflexes were normal in the bilateral knee and ankle. Sensation to light touch was decreased in the bilateral upper anterior thigh (L2), thigh/knee (L3/4), lower leg/ankle (L4/L5/S1) and foot/toes (L5). Straight leg raising test was positive in both legs. There was radicular pain indicated. There was no ankylosis of the spine or other neurologic abnormalities. The Veteran was noted to have IVDS with no episodes requiring bed rest during the past 12 months. The Veteran did not use any assistive devices. The Veteran’s lumbar spine did not require amputation with prosthesis and there were no scars associated with the lumbar spine. Diagnostic testing revealed arthritis of the lumbar spine. There was no thoracic vertebral fracture with loss of 50 percent or more of height. The examiner concluded that the Veteran’s lumbar spine disability impacted her ability to work because physical work was limited due to the difficulty in bending, lifting, pushing, pulling or carrying moderate weight, prolonged sitting, standing or walking. However, medical treatment records do not reflect the Veteran’s lumbar spine disability ever limited her range of motion in forward flexion to 30 degrees or less or reflect the Veteran has ever had ankylosis of the spine. Based on the foregoing, the Board finds the preponderance of the evidence weighs against a finding that the Veteran’s lumbar spine disability warrants a higher than 20 percent rating from December 17, 2019. Therefore, the claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McDuffie, 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.