Citation Nr: 21012736 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 16-45 192 DATE: March 5, 2021 ORDER From January 1, 2014 to December 5, 2019, entitlement to an evaluation greater than 10 percent disabling for intervertebral disc syndrome and degenerative disc disease of the lumbar spine is denied. From December 6, 2019, entitlement to an evaluation greater than 40 percent disabling for intervertebral disc syndrome and degenerative disc disease of the lumbar spine is denied. Entitlement to a 10 percent rating for the lumbar spine scar as of January 1, 2014 is granted. FINDINGS OF FACT 1. From January 1, 2014 to December 5, 2019, the Veteran’s lumbar spine disability manifested as painful motion with forward flexion limited to greater than 85 degrees, and combined range of motion limited to greater than 235 degrees. 2. From December 6, 2019, the Veteran’s lumbar spine disability manifested as forward flexion limited to less than 30 degrees. 3. The Veteran’s lumbar spine scar has been shown to be painful throughout the period on appeal for her lower back condition. CONCLUSIONS OF LAW 1. From January 1, 2014 to December 5, 2019, the criteria for a rating in excess of 10 percent for intervertebral disc syndrome and degenerative disc disease of the lumbar spine 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. 2. From December 6, 2019, the criteria for a rating in excess of 40 percent for intervertebral disc syndrome and degenerative disc disease of the lumbar spine 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. 3. From January 1, 2014, the criteria for a disability rating of 10 percent for lumbar spine scar, but no more, have been met. 38 U.S.C. §§ 1155, 5107, 5110 (b); 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has numerous periods of active service from April 1988 to December 2013. This appeal comes before the Board of Veterans’ Appeals (Board) from a September 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Lakewood, Colorado. In March 2019, the Veteran testified at a video conference hearing in the Denver RO before the undersigned Veterans Law Judge sitting at the Central Office in Washington, D.C. A transcript of the hearing is available in the record. 1. From January 1, 2014 to December 5, 2019, entitlement to an evaluation greater than 10 percent disabling for intervertebral disc syndrome and degenerative disc disease of the lumbar spine is denied. The Veteran’s claims on appeal stem from an initial rating of her claim for “lower back – discectomy L5-S1.” See January 2014 VA Form 21-526EZ, Fully Developed Claim (Compensation). In an August 2019 Board decision, the Board remanded that claim for increased rating, which was recharacterized as a claim for intervertebral disc syndrome and degenerative disc disease of the lumbar spine “with scar.” Subsequently, following a VA examination, the Veteran’s claim was separated into two ratings: one for intervertebral disc syndrome and degenerative disc disease of the lumbar spine; and the other for the Veteran’s lumbar spine scar. Therefore, although the issue of the Veteran’s scar has not been appealed, the Board takes jurisdiction of it as part and parcel of the increased rating for the back disability “with scar” which was perfected. The Veteran’s scar evaluation will be addressed later in this decision. The Veteran seeks an increased evaluation for her lumbar spine disability, presently rated at 40 percent disabling from December 6, 2019. Prior to that date, the Veteran’s lower back condition was rated at 10 percent disabling from January 1, 2014. The evidence supports assignments of staged ratings for the Veteran’s lower back condition, and the Board will discuss these periods on appeal separately. Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. Where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1995). A veteran is presumed to be seeking the maximum possible evaluation. AB v. Brown, 6 Vet. App. 35 (1993). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods of time based on the facts found – a practice known as “staged” ratings. The General Rating Formula for Diseases and Injuries of the Spine provides for a 10 percent rating 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 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. 38 C.F.R. § 4.71a. A 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or, unfavorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 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 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. 38 C.F.R. § 4.71a, Plate V, General Rating Formula for Diseases and Injuries of the Spine, Note (2). The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (4). In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion. Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (3). 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 (0 degrees) always represents favorable ankylosis. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (6). Diagnostic Code (DC) 5243 provides that intervertebral disc syndrome (IVDS) is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. In August 2014, the Veteran underwent a VA examination of her lower back. The examiner confirmed previous diagnoses of IVDS and DDD, which were documented as causing chronic, constant lower back pain. The examiner documented flare-ups which increased pain for approximately 1 day every 3 months. Range of motion was measured with forward flexion ending at 90 degrees or greater. Extension was measured at 30 degrees or greater. Lateral flexion and lateral rotation were each measured at 30 degrees or greater. No ankylosis of the spine was shown. No loss of range of motion was shown after repetitive use over time. However, the examiner documented that the condition caused reduced movement and increased pain over time. The Veteran’s lower back showed tenderness on palpation. The Veteran reported muscle spasms, but which did not result in abnormal gait or spinal contour. The examiner wrote that the Veteran’s condition did not impact her ability to work, and indicated there was no evidence of radiculopathy or herniated disk on examination that day. The examiner commented that there were no anticipated changes over time to range of motion from flares, pain, or repetitive motion. See August 2014 Compensation and Pension (C&P) Examination. The Veteran submitted a lay statement in November 2014 stating that she had reported to her August 2014 C&P examiner that she endured intense pain on a daily basis. She wrote that after reviewing the C&P report she believed there had been a mistake and that the wrong report was associated with her claim file. She reported her pain was worse than what the examiner had documented. The Veteran did not argue that the range of motion measurements were incorrect. Of note, the Veteran stated that she had suffered 3 “incapacitating episodes” within the past 12 months. The Board is mindful that “incapacitating episodes” as written within the rating criteria for IVDS is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treated by a physician. See 38 C.F.R. § 4.71A, DC 5243, Note (1). The Veteran’s medical records do not show any periods of prescribed bed rest. Nonetheless, the Veteran is competent to report her pain and functional limitations of her back condition, and the Board finds the Veteran’s statement to be otherwise credible. The Veteran’s medical treatment record for her lower back generally confirms her lay statements, that she suffered intense pain requiring multiple visits to her doctor for pain medication, physical therapy, and other treatment. Although the Veteran was advised in June 2017 to rest on a firm surface with a pillow under her knees to alleviate pain, no periods of prescribed bed rest are shown by the record. See June 2017 Medical Treatment Record – Non-Government Facility; VA Medical Treatment Record. The Veteran underwent another VA examination for her lower back on September 14, 2018. The examiner confirmed the diagnosis of DDD with a history of lumbar surgery in 2004 and 2016. The Veteran complained of functional losses to sitting for only 15-20 minutes, standing for only 10 minutes, walking no more than 30 minutes, and lifting no more than 25 pounds. The Veteran reported frequent flare-ups which caused her to lose work, which she estimated to be 45 total days in 2017. Range of motion measurements were taken as follows: forward flexion 0 to 80 degrees; extension 0 to 20 degrees; right lateral flexion 0 to 25 degrees; left lateral flexion 0 to 30 degrees; right lateral rotation 0 to 25 degrees; and left lateral rotation 0 to 30 degrees. No ankylosis of the spine was shown. The Veteran was able to perform repetitive use testing with at least three repetitions without additional loss of function or range of motion. However, the examiner indicated that the Veteran was not examined during a flare-up or immediately after repetitive use over time. The examiner stated that during flare-ups, the Veteran’s functional abilities were further weakened due to pain and fatigue. The examiner did not attempt to estimate range of motion limitations during flares. The examiner described the overall functional impact of her condition as being limited to sedentary work in an ergonomically correct workspace with breaks after extended periods. The Veteran would have difficulty with any job requiring repetitive physical activities such as climbing stairs or ladders, or performing other repetitive movements of the spine such as lifting, carrying, pushing, pulling, bending or twisting. See September 2018 C&P Examination. The Veteran submitted a lay statement in March 2019 taking exception with the VA examination above. Specifically, the Veteran stated that the examiner was unable to assess her pain, range of motion and functional loss during flare ups and after repetitive use because the examination was not conducted during a flare-up. The Veteran stated that whenever she visited a physician for back pain, she was prescribed pain medication and bed rest. See March 2019 Buddy / Lay Statement. The Board is again mindful that the Veteran’s medical records do not reflect any prescribed periods of bed rest. The Veteran’s statements are otherwise competent and credible. The preponderance of evidence supports a finding that from January 1, 2014 to December 5, 2019, the Veteran’s lumbar spine disability manifested as painful motion with forward flexion limited to greater than 85 degrees, and combined range of motion limited to greater than 235 degrees. Therefore, a 10 percent evaluation is appropriate during this stage under the General Rating Formula for Diseases and Injuries of the Spine. A higher evaluation is not appropriate as the evidence does not show forward flexion limited to less than 60 degrees; or combined range of motion limited to less than 170 degrees; or ankylosis of the spine. A higher rating would not result under the criteria of DC 5243 for IVDS, as the evidence does not show incapacitating episodes requiring prescribed bed rest, having a total duration of at least two weeks or more during a 12-month period. Accordingly, during this stage on appeal, the evidence does not support a higher evaluation than the assigned 10 percent rating. As the preponderance of evidence is against the Veteran’s claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107. 2. From December 6, 2019, entitlement to an evaluation greater than 40 percent disabling for intervertebral disc syndrome and degenerative disc disease of the lumbar spine is denied. As a preliminary matter regarding this stage on appeal, effective February 7, 2021, the schedule for rating disabilities of the musculoskeletal system has been revised. See 85 Fed. Reg. 76453 (Nov. 30, 2020). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable diagnostic codes to the period on or after the effective dates of the new diagnostic codes if the prior versions were in effect during the pendency of the appeal, as is the case here. Therefore, the Board may evaluate the Veteran’s IVDS and DDD under both earlier and current diagnostic codes, as of their effective dates, in order to determine which version would accord the Veteran the highest rating. In the Veteran’s case, the revised rating schedule instructs that IVDS ratings should be used only where there is disc herniation with compression and/or irritation of the adjacent nerve root; DC 5242 should be used for all other disc diagnoses. The revised DC 5242 in turn instructs that degenerative arthritis of the spine should be evaluated with consideration of DCs 5003 and 5010. See 85 Fed. Reg. 76453 (Nov. 30, 2020), DCs 5242, 5243. Under the revised DC 5003, the maximum possible evaluation of 20 percent would not exceed the Veteran’s present rating for her lower back, which is now rated 40 percent disabling. See 85 Fed. Reg. 76453 (Nov. 30, 2020), DC 5003; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under the revised DC 5010, post-traumatic arthritis should be rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with 38 C.F.R. § 4.25. As is discussed previously, such limitations of motion of the Veteran’s spine are evaluated within the General Rating Formula for Diseases and Injuries of the Spine. Thus, the revised rating schedule would not afford the Veteran a higher rating in the Veteran’s case, as the revised criteria direct the rater to the same rating criteria already contemplated. See 85 Fed. Reg. 76453 (Nov. 30, 2020), DC 5010; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). On December 6, 2019, the Veteran underwent another VA examination of her lower back. The examiner confirmed diagnoses of degenerative arthritis and IVDS. The Veteran reported severe, weekly flare-ups of her back condition which lasted 8 hours, precipitated by movement. The examiner documented the Veteran’s condition limited her ability to walk more than 10 yards, that she was unable to run or lift more than 5 pounds, or to use stairs. The Veteran reported back pain from most activities. Range of motion was measured as follows: forward flexion 5 to 40 degrees; extension 5 to 0 degrees; right lateral flexion 0 to 10 degrees; left lateral flexion 0 to 10 degrees; right lateral rotation 0 to 15 degrees, and left lateral rotation 0 to 15 degrees. Upon repetitive use over time or during flare-ups, the examiner estimated that the Veteran’s condition further limited her range of motion to forward flexion of 0 to 10 degrees; extension 5 to 0 degrees; right lateral flexion 0 to 10 degrees; left lateral flexion 0 to 10 degrees; right lateral rotation 0 to 10 degrees; and left lateral rotation 0 to 10 degrees. No ankylosis of the spine was shown. See December 2019 C&P Examination. Based on the above examination, the present 40 percent evaluation is appropriate under the General Rating Formula for Diseases and Injuries of the Spine. The preponderance of evidence supports that during this stage, the Veteran’s condition manifested as painful motion with forward flexion limited to less than 30 degrees. A higher evaluation is not appropriate as the evidence does not show ankylosis of the spine. A higher evaluation would not result under DC 5243 for IVDS, as the evidence does not show incapacitating episodes requiring prescribed bed rest of 60 weeks or more in 12 months. Accordingly, during this stage on appeal, the evidence does not support a higher evaluation than the assigned 40 percent rating. As the preponderance of evidence is against the Veteran’s claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107. 3. Entitlement to an effective date of January 1, 2014 for lumbar spine scar is granted. The Veteran’s surgical lumbar spine scar is rated at 10 percent disabling from December 6, 2019. For the reasons that follow, the Board finds the 10 percent scar rating warrants an effective date of January 1, 2014. The Veteran’s lumbar spine scar is evaluated under DC 7804. Under DC 7804, a 10 percent evaluation is appropriate for one or two scars that are unstable or painful; a 20 percent evaluation is appropriate for three or four scars that are unstable or painful; the maximum evaluation of 30 percent is appropriate for five or more scars that are unstable or painful. See 38 C.F.R. § 4.118, DC 7804. Following her claim for service connection for lower back – discectomy L5-S1, the Veteran underwent a VA examination in August 2014. The VA examiner made note that the soft tissue of the Veteran’s lower back was tender upon palpation “over scar midline L5 S1.” Later in the examination report, the examiner indicated that the Veteran did have a scar due to surgery for her lower back condition, but the scar was not painful and/or unstable. See August 2014 C&P Examination. The Veteran submitted a lay statement in November 2014 indicating that the scar itself was painful to the touch, including pain simply from wearing pants over the affected area. See November 2014 Correspondence. The Veteran echoed this contention at her hearing testimony in March 2019, testifying that she wore a lidocaine patch over the scar, but that she still experienced great pain upon touch, including from clothing or scratching, and that the scar would become irritated and peel. See March 2019 Hearing Transcript. The Board finds the Veteran’s lay statements regarding her painful scar to be competent and credible. Subsequently, the Veteran was granted a 10 percent evaluation for her scar, effective December 6, 2019, which was the date of a VA examination identifying a painful scar condition. The effective date of an award of disability compensation shall be the day following the date of the veteran’s discharge or release from active duty if the application therefor is received within one year from the date of discharge or release. 38 U.S.C. § 5110 (b)(1). The Veteran’s painful scar is part and parcel of her claim for her lower back condition. The preponderance of evidence supports a finding that the Veteran’s scar has been shown to be painful throughout the period on appeal for her lower back condition. The Veteran’s lower back claim was granted with an effective date of January 1, 2014 in accordance with 38 U.S.C. § 5110 (b)(1). Accordingly, the effective date for her scar disability is appropriately the same date. A rating in excess of 10 percent is not warranted as there is more than one service-connected scar. (Continued on the next page)   An effective date of January 1, 2014 for the 10 percent rating for the Veteran’s lumbar spine scar disability is granted. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hermsdorfer, 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.