Citation Nr: 21012036 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 12-35 035 DATE: March 3, 2021 ORDER A 20 percent rating prior to September 18, 2020 for a lumbar spine disorder is granted, subject to the rules and regulations governing the award of monetary benefits. A rating in excess of 20 percent from September 18, 2020 for a lumbar spine disorder is denied. FINDINGS OF FACT 1. Prior to September 18, 2020, the evidence is at least in equipoise as to whether the Veteran’s lumbar spine disorder was manifested by forward flexion of the thoracolumbar spine to 60 degrees. 2. For the entirety of the appeal period, the Veteran’s lumbar spine disorder has not been manifested by forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. Prior to September 18, 2020, the criteria for a 20 percent for a lumbar spine disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5242. 2. From September 18, 2020, the criteria for a rating in excess of 10 percent for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.7, 4.40, 4.45, 4.71a, DC 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1974 to July 1977. In January 2020, the Board most recently remanded the current claim for additional development. During the pendency of the appeal, in an October 2020 rating decision, the Regional Office (RO) granted a higher 20 percent rating for a lumbar spine disorder, effective September 18, 2020. Nevertheless, as a higher rating for this disability is still available, this does not constitute a full grant of the benefits sought and the claim for a higher rating remains on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). Entitlement to a rating in excess of 10 percent prior to September 18, 2020 and in excess of 20 percent therefrom for a lumbar spine disorder. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. §§ 4.40. It is important that when evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. §§ 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. §§ 4.45. It is the intent of the schedule to recognize painful motion with joint or periarticular pathology as productive of disability. It is also the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. §§ 4.59. The Veteran’s disability is currently rated under Diagnostic Code 5242 for degenerative arthritis. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. The Veteran’s lumbar spine disorder is rated under DC 5242 for degenerative arthritis, pursuant to the General Rating Formula for Diseases and Injuries of the Spine. Under this rating criteria, a 10 percent disability rating is warranted for forward flexion of the thoracolumbar (lumbar) 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 disability rating is assigned 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 disability rating is assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. As explained below, there is no evidence the Veteran has intervertebral disc syndrome (IVDS). As such, the specific rating criteria that pertain to IVDS will not be considered herein. 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. 38 C.F.R. § 4.71a, Note (2). The Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39- 40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit-of-the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § § 3.102. In this case, the Veteran is in receipt of a 10 percent rating prior to September 18, 2020 and in excess of 20 percent therefrom for his lumbar spine disorder. He contends that higher ratings are warranted. For reasons discussed more fully below, the Board finds that an increased 20 percent rating is warranted prior to September 18, 2020. A rating in excess of 20 percent is not warranted for any period on appeal. In September 2010, the Veteran underwent a VA examination to evaluate the severity of his lumbar spine disorder. The Veteran reported severe flare ups of his spine condition every 1 to 2 months lasting 1 to 2 days, with precipitating factors of prolonged standing, driving, torsion movements, repeated bending or heavy lifting. The examiner diagnosed degenerative joint disease of the lumbar spine and documented ranges of motion as follows: forward flexion at 70 degrees, extension at 10 degrees, left lateral flexion at 20 degrees, right lateral flexion at 15 degrees, and left and right lateral rotation at 20 degrees. The examiner also documented no incapacitating episodes, normal gait, no abnormal spinal curvature, no spasms, no guarding, no ankylosis, no tenderness or weakness, normal reflexes, and normal sensory/motor examinations. The examiner indicated that pain was noted on extremes of motion for all ranges of motion. The examiner also indicated that this disability would cause problems with lifting and carrying, pain, and lack of stamina. VA treatment records from February 2012 to May 2015 indicate that the Veteran had chronic low back pain. However, he had excellent range of motion of the low back, without pain reproduction and no pain to palpation over the spine. On September 18, 2020, the Veteran underwent another VA examination to evaluate the severity of his lumbar spine disorder. The examiner diagnosed degenerative arthritis of the spine. The Veteran reported worsening low back pain since initial onset and decreased functional status. He also reported severe flare ups of the back with pain that occur daily and last all day. Range of motion testing showed flexion at 70 degrees, extension at 20 degrees, left and right lateral flexion at 25 degrees, and left and right lateral rotation at 20 degrees. There was objective evidence of pain when the spine was non-weight bearing. Passive range of motion was not performed as it was not feasible and not safe. There was additional range of motion loss on repetitive use testing as follows: flexion at 65 degrees, extension at 15 degrees, left and right lateral flexion at 20 degrees, and left and right lateral rotation at 20 degrees. The examiner indicated that the examination was medically consistent with the Veteran’s statements describing functional loss with flare ups and repetitive use over time and found that flare ups and/or repetitive use over a period of time would cause range of motion loss as follows: flexion at 60 degrees, extension at 15 degrees, left and right lateral flexion at 20 degrees, and left and right lateral rotation at 20 degrees. The examiner documented no guarding or muscle spasm, normal muscle strength, normal reflexes, normal sensation, no radiculopathy, no ankylosis, and no IVDS. The examiner opined that the functional impact of the Veteran’s lumbar spine disorder consisted of an inability to walk or stand for prolonged periods of time, inability to tolerate long care rides or drive long distances, inability to ride a bike or a 4 wheeler, and inability to lift anything or do physical labor. More recent VA treatment records document the Veteran’s continuous reports of chronic low back pain. Based on the foregoing, the Board finds that, for the period prior to September 18, 2020, the evidence is at least in equipoise as to whether the criteria for a higher 20 percent rating for the lumbar spine disorder have been met. In pertinent part, at the time of the Veteran’s September 2010 VA examination, the examiner documented flexion at 70 degrees and severe flare-up episodes. VA treatment records show that the Veteran’s chronic low back pain has remained relatively consistent up through the September 18, 2020 VA examination. The Board notes that, while the Veteran appears to have had excellent/normal range of motion documented in his VA treatment records, the degrees of range of motion were not reported and these findings do not account for any flare-up episodes. During the September 18, 2020 VA examination, the Veteran again exhibited 70 degrees of flexion for the lumbar spine and reported severe flare-up episodes. The examiner, however, indicated that the Veteran’s flare-up episodes would result in additional loss of range of motion consistent with 60 degrees of flexion. As the Veteran’s symptoms appear to be consistent from his September 2010 VA examination to his September 2020 VA examination and because the September 2010 VA examiner did not provide an estimation of the additional range of motion loss due to flare ups, the Board finds that the evidence is at least in equipoise as to whether the estimation of 60 degrees of flexion due to severe flare ups is applicable to the severe flare ups reported during the September 2010 VA examination. As such, for the period prior to September 18, 2020, a higher 20 percent rating is warranted. For the entirety of the appeal period, however, a rating in excess of 20 percent for the Veteran’s lumbar spine disorder is not warranted. In that regard, the record does not show evidence of lumbar spine flexion to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine (i.e., the criteria for the next higher 40 percent rating). Accordingly, for the entirety of the appeal period, a higher rating in excess of 20 percent is not warranted for the Veteran’s lumbar spine disorder. The Board acknowledges that VA examinations must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158 (2016). The Board has further considered the United States Court of Appeals for Veterans’ Claims (Court’s) holding in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), addressing 38 C.F.R. § 4.40, which states that a VA examiner must “express an opinion on whether pain could significantly limit functional ability” and the examiner’s determination in such regard “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” The Board has carefully considered the VA examinations of record and whether they complied with Correia and Sharp, and the Board finds that the most recent September 18, 2020 VA examination complied with these requirements. To the extent that the previous examination findings of record relative to the lumbar spine are not completely in compliance with Correia and/or Sharp, the Board finds that remand for additional examination/opinion would serve no useful purpose. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). In that regard, as indicated above, the Veteran’s lumbar spine symptoms appear to be consistent from his September 2010 VA examination to his September 2020 VA examination and the Veteran’s September 2020 VA examination findings have been retrospectively considered. Therefore, a remand to obtain a current examination that complies with Correia and Sharp or retrospective medical opinion would not be useful. The Board also acknowledges the Veteran’s contention that the September 2010 VA examiner provided an inconsistent statement, in that the examiner documented severe flare ups, but found no incapacitating episodes. See December 2012 VA Form 9. Significantly, however, there was no evidence to suggest that the Veteran’s flare ups caused incapacitating episodes (as defined in the regulations). Rather, the VA examiner documented that the Veteran’s flare ups were precipitated by prolonged standing, driving, torsion movements, repeated bending or heavy lifting and were relieved by rest, analgesics, and ice/heat packs. Accordingly, the Board finds that this contention is not supported and is not probative. Lastly, the Board notes that, although more recent records from September 2020 suggest that the Veteran is unable to perform sedentary work, the Veteran has been in receipt of a 100 percent schedular rating since October 13, 2017 and entitlement to a total disability based on individual unemployability (TDIU) from October 13, 2017 is moot. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). The Board acknowledges that a 100 percent disability rating does not necessarily render the issue of a TDIU moot and a TDIU may be predicated on one disability (although perhaps not ratable at the schedular 100-percent level) when considered together with another disability separately rated at 60 percent or more could warrant SMC under 38 U.S.C. § 1114 (s). See Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008). However, the evidence does not show, and the Veteran has not alleged, that one of his service-connected disabilities alone renders him unable to gain or maintain substantial gainful employment. Accordingly, the findings in Bradley are not applicable in this case, and the issue of entitlement to a TDIU is moot. (Continued on the next page)   Prior to October 13, 2017, there is no evidence to suggest that the Veteran's service-connected disabilities, alone or together, prevented him from obtaining or maintaining substantially gainful employment. Rather, the evidence shows that the Veteran was able to work as a farmer and a bailiff. See March 2011 and October 2017 VA Treatment records. Therefore, the Board finds that consideration of a TDIU for this period is not warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Metzner, Paul 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.