Citation Nr: 21013166 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 14-28 983 DATE: March 8, 2021 ORDER Entitlement to an initial rating greater than 10 percent for service-connected residuals of status post lumbar laminectomy, prior to August 16, 2017, is denied. FINDING OF FACT Prior to August 16, 2017, the most probative evidence of record reflects, the Veteran’s residuals of status post lumbar laminectomy was manifested by pain and other symptoms productive of limitation of forward flexion of the thoracolumbar spine, at worst, to 70 degrees, and combined range of motion of 200 degrees CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for residuals of status post lumbar laminectomy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1979 to May 1983 and from September 1994 to May 2011. The Board issued a decision in September 2019 denying, in part, an increased rating for residuals of status post lumbar laminectomy, prior to August 16, 2017. The Veteran appealed the Board’s decision as to this denial to the United States Court of Appeals for Veterans Claims (Court). In a July 2020 Order granting a Joint Motion for Partial Remand (JMPR), the Court vacated the Board’s September 2019 decision pertaining to the increased rating for residuals of status post lumbar laminectomy prior to August 16, 2017 and remanded the claim to the Board for readjudication. Additionally, since the most recent October 2017, supplemental statement of the case issued, in part, for the claim on appeal, additional evidence has been associated with the claims file, to include VA treatment records. However, if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests Agency of Original Jurisdiction consideration. Here, although the Veteran’s substantive appeal was filed after February 2, 2013, the Board interprets such exception as applying only to evidence submitted by the Veteran, not to evidence developed by VA and, as noted above, additional evidence has been developed by VA. However, as the additional evidence developed by VA is either not relevant or duplicative of evidence previously of record, there is no prejudice to the Veteran in this regard. Entitlement to an initial rating greater than 10 percent for service-connected residuals of status post lumbar laminectomy, prior to August 16, 2017 The Veteran seeks a rating in excess of 10 percent for residuals of status post lumbar laminectomy prior to August 16, 2017. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found – a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. Throughout the appeal period prior to August 16, 2017, the Veteran’s residuals of status post lumbar laminectomy were rated under 38 C.F.R. § 4.71a, Diagnostic Code DC 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, 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. Additionally, during the pendency of the appeal, VA revised the portion of the VA Schedule for Rating Disabilities that addresses the musculoskeletal system. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). The final rule went into effect February 7, 2021. However, the period on appeal is prior to August 16, 2017, which predates February 7, 2021, when the amended regulations went into effect. Also DC 5237, under which the Veteran’s residuals of status post lumbar laminectomy is rated was unchanged by the amendments. 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). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Turning to the evidence of record, in an April 2011 pre-discharge VA examination, the Veteran reported a history of lumbar degenerative changes, disc space narrowing, stenosis, laminectomy, and discectomy with treatment of pain medication, epidural injections, and a prior back surgery. She was diagnosed with status post lumbar laminectomy with residual scar. She reported limitation in walking manifested by walking an average of 50 yards in one hour, adding that she would experience falls due to the spine condition. She also described having severe constant pain, along with spasms, decreased motion, and weakness of the spine and leg, only relieved with rest and pain medication. She denied stiffness, fatigue, paresthesia, and numbness. She reported having flare-ups, and that she would experience limitation of motion of the joint which was described as not being able to bend to the right side. She noted that she did not experience any residual symptoms from the surgeries. Over the preceding 12 months, she reported an incapacitating episode on one day with bed rest that had been recommended by her physician. Her overall functional impairment was described as an inability to stand for long periods of time, climb stairs, and sleep without pain. Her range of motion measurements revealed flexion of 0 to 100 degrees; extension of 0 to 25 degrees; right and left lateral flexion of 0 to 25 degrees; and right and left lateral rotation of 0 to 30 degrees. Following repetitive use, joint function of the spine was additionally limited by pain and lack of endurance. Specifically, there was an additional five-degree loss of flexion following repetitive use. Thus, these findings generally reflect, at worst, a combined range of motion of 230 degrees. Function was not additionally limited by fatigue, weakness, or incoordination. Inspection of the spine revealed normal head position with symmetry in appearance and symmetry of spinal motion with normal curves of the spine. There was no evidence of radiating pain on movement, muscle spasms, guarding of movement, muscle atrophy, ankylosis, or intervertebral disc syndrome (IVDS). The Veteran’s spinal contour was preserved, though there was tenderness noted on examination described at the lower lumbar spine in the midline. The examination did not reveal any weakness, and the Veteran’s muscle tone and musculature were normal. Straight leg raising and Lasègue’s sign were negative. In May 2011, the Veteran was admitted for intractable back pain. She said she bent over to pick something up and suddenly experienced severe pain. She presented with severe pain and was reported as not being able to get herself out of the gurney. She was treated with an epidural steroid injection. During her stay in the hospital, she was seen by an occupational therapist. The therapist determined the Veteran had functional limits and required a treatment plan to restore her maximal level of function. In a July 2012 statement, the Veteran described severe pain and treatment with epidural steroid injections. In February 2013, the Veteran requested a new back brace as the one she had been wearing wore out. In March 2013, she noted that she wore the back brace during exercise. In August 2013, she described ongoing chronic pain and a history of epidural injections. In July 2015, she reported radiating pain to the right lower extremity. Private diagnostic studies from Providence Hospital dated in April 2015 show magnetic resonance imaging findings that revealed lumbar stenosis and a history of a prior laminectomy. The Veteran underwent a VA examination in December 2015. She told the examiner her condition had worsened, she had pain radiating down her leg affecting her toes as well, and she received cortisone shots when her pain became unbearable. She also told the examiner that when she has flare-ups, she had a lot of pain and had to go to the emergency room for pain medication, and usually could barely walk; however, incapacitating episodes were not noted. She also reported she suffered functional impairments of not being able to sit or stand for a long period of time, preventing her from doing a lot of things, and that she felt that she was always in a rush so she could avoid pain. The December 2015 examiner performed a range of motion test using a goniometer, finding forward flexion to be 0 to 75 degrees, extension to be 0 to 30 degrees, right and left lateral flexion to be 0 to 20 degrees, and right and left lateral rotation to be 0 to 30 degrees, for a combined range of motion of 205 degrees, and with no additional loss of range of motion with repetitive motion. The examiner noted the Veteran did have pain with forward flexion, but that it did not result in or cause functional loss. However, when the Veteran performed repetitive motions, it was noted that while no functional loss occurred, the Veteran did suffer pain and weakness. The December 2015 examiner determined the Veteran did have pain with weight bearing and objective evidence of localized tenderness on palpation but that it did not result in an abnormal gait or spinal contour. The Veteran’s reflex and sensory examinations were all normal, and it was noted she suffered from radiculopathy on both her right and left sides. She also found that the Veteran did not suffer muscle spasms, guarding, muscle atrophy, ankylosis, or IVDS. While the Veteran reported severe flare-ups of her low back pain and feeling unable to walk when pain would flare, she only described one additional limitation of motion during the flare-ups. As stated above, she reported in her April 2011 VA examination not being able to bend to her right side; however, there were no indications of this limitation again in the record. Further, the December 2015 examiner found pain and weakness significantly limited the Veteran’s functional ability with repeated use over a period of time resulting in forward flexion to 70 degrees, and a combined range of motion of 200 degrees, findings which would not result in a higher rating. The December 2015 examiner also found pain, weakness, fatigability or incoordination did not significantly limit the Veteran’s functional ability with flare-ups. In addition, the Veteran indicated during an August 2017 VA examination, dated proximate to the appeal period, that these flare-ups required her to get steroid injections only occurred five to six times a year. Even if further reduced motion was present during a flare-up, a higher rating would not be warranted based upon limitation of motion given the frequency of the flare-ups. A few flare-ups a year where there could be severe or moderate pain needing steroid injections or muscle relaxants does not support a finding that the evidence more nearly approximates 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, when the rest of the time is much greater. See 38 C.F.R. § 4.7. The only incapacitating episodes described were the one in her April 2011 VA examination, prior to separation, and the reported hospital visit in May 2011. The Board finds these examinations to be competent and probative, and therefore, the preponderance of the evidence is against the Veteran’s claim. As such, entitlement to an evaluation in excess of 10 percent is not warranted prior to August 16, 2017, and the claim is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. M. ESPINOZA Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Doerfler, 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.