Citation Nr: 21013437 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-08 781A DATE: March 9, 2021 ORDER The application to reopen the February 19, 2009 claim for an increased rating for degenerative joint disease (DJD) of the lumbar spine is granted. Entitlement to an evaluation in excess of 0 percent for DJD of the lumbar spine, prior to August 19, 2013, is denied. FINDINGS OF FACT 1. In an August 2009 rating decision, the Regional Office (RO) denied a compensable rating for the Veteran’s DJD of the lumbar spine. 2. Additional evidence was received into the file within one year of the rating decision. 3. The additional evidence is new and material to the issue of the current level of functional impairment caused by the Veteran’s disability. 4. The Veteran’s disability preexisted service and was manifest to a 10 percent degree. 5. Prior to August 19, 2013, the Veteran’s DJD of the lumbar spine was manifested by a forward flexion range of motion greater than 60 degrees but not greater than 85 degrees, no muscle spasms, and no incapacitating episodes. CONCLUSIONS OF LAW 1. The August 2009 rating decision denying an increased rating for DJD of the lumbar spine, is not final. 38 U.S.C. §§ 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 2. New and material evidence has been received to reopen the Veteran’s claim for an increased rating for DJD of the lumbar spine. 38 U.S.C. §§ 1131, 5108; 38 C.F.R. §§ 3.303, 3.156. 3. Prior to August 19, 2013, the criteria for a compensable rating for DJD of the lumbar spine are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010-5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from August 1980 to December 1980 and from March 2003 to May 2004. This case comes before the Board of Veterans’ Appeals (Board) on an appeal from a December 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office. This claim has been before the Board twice and was remanded both times. The first time in June 2018, it was remanded for questions of clearly unmistakable evidence. The second time, in January 2020, it was remanded for the Agency of Original Jurisdiction (AOJ) to readjudicate the claim and provide a supplemental statement of the case (SSOC), which was subsequently associated with the file in June 2020. The Veteran’s claim remanded from the Board was for entitlement to an earlier effective date of 60 percent for DJD of the lumbar spine. For the reasons discussed below, the Board finds that the Veteran’s February 19, 2009 claim was never final, and therefore, the period on appeal is instead subject to staged ratings, and not an earlier effective date claim. New and material evidence having been received, the application to reopen the February 19, 2009 claim for an increased rating for degenerative joint disease (DJD) of the lumbar spine. A claim remains pending where VA fails to fulfill a statutory duty under 38 C.F.R. § 3.156 (b) to determine the character of evidence submitted within the one-year appeal period following issuance of a rating decision. Beraud v. McDonald, 766 F.3d 1402, 1406 (Fed. Cir. 2014). 38 C.F.R. § 3.156 (b) requires VA to determine whether subsequently submitted evidence constituted new and material evidence relating to an earlier claim. Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). The holdings in Beraud and Bond are applicable in the present case, as the RO failed to address a VA examination for the Veteran’s back disability received in February 2010. Accordingly, the treatment records were received such that VA was obligated to make a determination whether the evidence was new and material. Beraud, 766 F.3d at 1407. As no subsequent rating decision has made a determination with regard to this evidence, the August 2009 rating decision did not become final. The Board finds, therefore, that the Veteran’s February 19, 2009 claim remained pending at the time he filed his later December 2009, January 2011, and August 2013 claims for an increased rating for his service-connected DJD of the lumbar spine. The evidence received during the one-year period following the August 2009 rating decision included a VA examination, and statements from the Veteran, his wife, and his manager at work. While the statements speak to the Veteran’s pain, discomfort, and improvement with physical therapy, the VA examination includes clinical findings regarding the Veteran’s DJD of the lumbar spine. Thus, as an increased rating was previously denied, and the newly received evidence addresses the Veteran’s claim of a worsening of his back disability, the Board finds that the evidence received during the one-year period following the August 2009 rating decision was not cumulative or redundant of the evidence of record at the time of the decision and raises a possibility of an increased rating for DJD of the lumbar spine. Accordingly, the Board concludes that the criteria for reopening the increased rating claim are met. 38 C.F.R. § 3.156(a). Therefore, as the Veteran’s claim for an increased rating for DJD of the lumbar spine remained pending, the period on appeal stems from his February 19, 2009 claim, and the effective dates of the increased ratings will be the date of entitlement to such ratings. See Harper v. Brown, 10 Vet. App. 125 (1997). Accordingly, the Board will address his claim as an increased rating claim and determine the date of entitlement to higher ratings. Prior to August 13, 2019, entitlement to an evaluation in excess of 10 percent for degenerative joint disease of the lumbar spine. The Veteran seeks a rating in excess of 0 percent for his service-connected DJD of the lumbar spine. He claims that had he been given an MRI sooner he would have had the increased rating awarded after one of his earlier claims. The 0 percent rating in effect for the Veteran’s service-connected DJD prior to February 24, 2009, was awarded in an April 2007 rating decision. The Veteran’s DJD existed prior to his military service and he was awarded service connection based on the permanent worsening as a result of his service. Prior to service, it was determined the Veteran’s back disability was rated at 10 percent disabling. After service, the AOJ determined he was rated at 10 percent disabling for his degenerative disc disease (DDD) of the lumbar spine based on Diagnostic Code 5242, which provides a 10 percent rating assigned 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. However, since he was determined to have been rated at 10 percent disabling prior to service, the new rating is to be deducted from the rating prior to service. 38 C.F.R. § 4.22. Accordingly, the Veteran was left with a 0 percent disabling rating for DDD-lumbar spine. The degree of pre-service disability was determined in an April 2007 rating decision of which the Veteran was notified in the same month. That decision was not appealed nor was additional evidence received within one year of the notice. The Veteran has not argued that the pre-service disability rating is inaccurate nor submitted any evidence on this point. The Board will continue to apply the 10 percent offset. 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. The Veteran’s back disability is currently rated as noncompensably disabling pursuant to DC 5242 for degenerative arthritis of the lumbar spine under the General Rating Formula for Diseases and Injuries of the Spine after offsetting for preexisting disability. 38 C.F.R. § 4.71a, DC 5010-5242. Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a, DC 5237-5242. 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. Id. 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. Id. 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. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Finally, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. 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. Id at Note (2). 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. Id. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id. 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. Id. Range of motion measurements are to be rounded to the nearest five degrees. Id at Note (4). The Veteran underwent a VA examination in March 2009. During this examination, the Veteran said he was unable to walk for more than a few yards. He reported no stiffness, no weakness, no spasms, no radiation of pain, no flare-ups, and no incapacitating episodes. He did indicate that he suffered constant mild dull pain daily. The examiner determined the Veteran did not suffer thoracolumbar spine ankylosis, atrophy, guarding, or pain with motion. The Veteran’s motor examination, muscle tone, sensory test, and reflex test were all normal. His active range of motion measurements were flexion from 0-75 degrees with pain beginning at 75 degrees, extension from 0-10 degrees with pain at 10 degrees, left lateral flexion from 0-13 degrees with pain at 13 degrees, right lateral flexion from 0-13 degrees with pain at 13 degrees, left rotation from 0-18 degrees with pain at 18 degrees, and right rotation from 0-18 degrees with pain at 18 degrees. The examiner noted the Veteran suffered significant effects on usual occupation including problems with lifting and carrying due to pain. The Veteran’s combined range of motion was 147 degrees. With pain beginning at the end of each range, the combined ranges represent the Veteran’s functioning as reduced by pain. In February 2010, the Veteran underwent a VA examination for his back disability. At this examination, he told the examiner that it was getting harder to climb steps and had to be careful going down slopes. The examiner measured his active range of motions measurements at flexion at 84 degrees with pain from 75-84 degrees, extension from 0-10 degrees with pain at 10 degrees, left lateral flexion from 0-16 degrees with pain from 12-16 degrees, right lateral flexion from 0-20 degrees with pain from 18-20 degrees, left rotation from 0-25 degrees with pain throughout the motion, and right rotation from 0-30 degrees with pain at 30 degrees. All measurements except right rotation had no additional loss of motion on repetitive use, with right rotation measurement going from 30 to 28 degrees. He told the examiner that his back affected his getting in and out of his work truck and that he missed less than one week of work over the last year due to his back disability. The examiner noted there were no flare-ups of his spinal condition, no incapacitating episodes, no thoracolumbar spine ankylosis, no atrophy, and no weakness. The Veteran did suffer limitations with walking as he was unable to do so for more than a few yards, having an abnormal gait, guarding on the left and right side, pain with motion on the left and right sides, and tenderness on the left and right sides. The Veteran’s combined range of motion was 185 degrees. Using the ranges without pain, the combined range of motion was 145 degrees, even omitting left lateral flexion entirely which had pain throughout. The Veteran had another VA examination in February 2011. He reported that his lower back and right hip had been more bothersome and that he felt it may affect his ability to do his job soon. He also indicated that the pain was worse, and he suffered flare-ups lasting hours, causing functional impairment by making it difficult to walk or do any chores. The Veteran did not suffer incapacitating episodes, spasms, falls, numbness, paresthesias, or unsteadiness. However, the examiner did note the Veteran did suffer constant daily severe pain. He maintained a normal gait and did not have thoracolumbar spine ankylosis, spasms, atrophy, pain with motion, tenderness, or weakness. His active range of motion measurements were flexion from 0-80 degrees, extension 80-0 degrees, left lateral flexion 0-20 degrees, left lateral rotation 0-18 degrees, right lateral flexion 0-15 degrees, and right lateral 0-15 degrees. There was objective evidence that there was pain on active range of motion and pain following repetitive motion, but there were no additional limitations after three repetitions of range of motion. His reflexes and sensory tests all were within normal range. It was also noted that the Veteran had lost no time from work during the past year due to his back condition. The Veteran’s combined range of motion was 148 degrees. In a March 2011 physical medicine rehabilitation consult, the Veteran reported the pain was getting worse and that he has more bad days than good. He told the physician his pain was an aching dull type of pain. He denied any numbness or tingling. The doctor noticed the Veteran’s limping gait during ambulation, but that he did not use an assistive device. His flexion was measured at 0-80 degrees and his extension at 0-30 degrees, both with pain. The Veteran underwent another VA examination in March 2011. The Veteran complained of severe pain that was constant and daily, and that he had flare-ups ever two to three weeks lasting hours, causing severe pain making it difficult to walk or do any chores. The Veteran reported no incapacitating episodes, no spasms, no pain with motion, no tenderness, and no weakness. He presented with a normal gait, no thoracolumbar spine ankylosis, normal reflexes, normal sensory test, and with a normal detailed motor examination. His active range of motion measurements were flexion from 0-80 degrees, extension from 80-0 degrees, left lateral flexion 0-20 degrees, left lateral rotation 0-18 degrees, right lateral flexion 0-15 degrees, and right lateral rotation 0-15 degrees. There was objective evidence of pain on active range of motion and following repetitive motion, but no additional limitation after three repetitions of range of motion. The Veteran’s combined range of motion was 148 degrees. In a December 2013 rating decision, the Veteran was awarded a 60 percent rating for DJD lumbar spine, changing the Diagnostic Code to better fit the Veteran’s disability. Read v. Shinseki, 651 F.3d 1296, 1300 (Fed. Cir. 2011). The RO assigned the date of claim, August 19, 2013, as the effective date. The Board finds the VA examinations, which considered the Veteran’s lay statements and completed clinical testing, highly probative. Dalton v. Nicholson, 21 Vet. App. 23 (2007). In this regard, the Board notes that, while the examinations do not reflect passive range of motion testing, or delineation of pain on weight-bearing and non-weightbearing, the evidence does not suggest, and the Veteran has not argued, that his range of motion would be further limited in such capacity, and the Veteran reported constant pain, which implies pain on both weightbearing and non-weightbearing. Consequently, the record does not reflect that a rating in excess of 10 percent for back disability is warranted at any point during the appeal period. In this regard, at no time did such disability result in forward flexion limited to 60 degrees or less, or a total range of motion of the thoracolumbar spine limited to 120 degrees or less, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. Specifically, at both examinations the Veteran’s forward flexion was limited to 75 degrees at its worst, while his total range of motion was limited to 147 degrees at its worst. Moreover, at no point was he found to have ankylosis, guarding, or muscle spasms. Rather, his functional impairment manifested by painful movement, offset by his preservice disability rating. 38 C.F.R. § 4.22. The Board concludes that the criteria for a compensable rating prior to August 19, 2013, are not met under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, 5010-5242. The Veteran’s service-connected disability, degenerative disc disease is also known as intervertebral disc syndrome (IVDS). IVDS may be evaluated under either the General Rating Formula or under the IVDS Rating Formula, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, DC 5243. The IVDS Rating Formula provides ratings based on incapacitating episodes, periods of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician, of sufficient duration. In the August 19, 2013 rating decision, the RO decided to change the Veteran’s DC to IVDS, due to his incapacitating episodes having a duration of at least six weeks during the past 12 months. However, prior to August 19, 2013, the Veteran did not allege, and the record does not suggest, that he had had any periods prescribed bedrest. The Board finds that the Veteran has not had incapacitating episodes; therefore, an alternative rating under DC 5243 is not warranted prior to August 19, 2013. In light of the foregoing, the Board finds the preponderance of the evidence is against assigning higher or separate ratings. Consequently, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Board concludes that a compensable rating for DJD of the lumbar spine prior to August 19, 2013, is denied. J. B. FREEMAN 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.