Citation Nr: 21014484 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 09-47 638 DATE: March 12, 2021 ORDER Entitlement to an initial rating for lumbar spondylosis, disc herniation, in excess of 10 percent prior to January 24, 2012 is denied. Entitlement to a rating for lumbar spondylosis, disc herniation, in excess of 20 percent from January 24, 2012 to September 20, 2017 is denied. Entitlement to a rating for lumbar spondylosis, disc herniation, in excess of 40% from September 20, 2017 is denied. FINDINGS OF FACT 1. Prior to September 24, 2012, the Veteran's lumbar spine disorder manifested a limitation of flexion to 90 degrees with no abnormal spinal curvatures. 2. From September 24, 2012 through September 20, 2017, the Veteran's lumbar spine disorder manifested a limitation of flexion to 55 degrees, at worst. 3. From September 20, 2017, the Veteran's lumbar spine disorder manifested a limitation of flexion to 15 degrees with no ankylosis. 4. The objective medical evidence did not show incapacitating episodes that required bed rest prescribed by a physician totaling more than one week during any 12 months during the period on appeal. CONCLUSIONS OF LAW 1. Prior to September 24, 2012, the criteria for an increased rating in excess of 10 percent disabling for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.71a, Diagnostic Codes 5242, 5243 (2020). 2. From September 24, 2012 to September 20, 2017, the criteria for an increased rating in excess of 20 percent disabling for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.71a, Diagnostic Codes 5242, 5243 (2020). 3. From September 20, 2017, the criteria for an increased rating of 40 percent disabling, but no higher, for a lumbar spine disorder are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.71a, Diagnostic Codes 5242, 5243 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from January 2002 to December 2002. The Veteran testified at a Board hearing in April 2017. A transcript is on file. These issues were most recently Remanded by the Board in April 2020. They have now been returned to the Board. Increased Rating 1. Entitlement to an initial rating for lumbar spondylosis, disc herniation, in excess of 10 percent prior to January 24, 2012. 2. Entitlement to a rating for lumbar spondylosis, disc herniation, in excess of 20 percent from January 24, 2012 to September 20, 2017. 3. Entitlement to a rating for lumbar spondylosis, disc herniation, in excess of 40% from September 20, 2017. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service connected disorder. 38 U.S.C. § 1155. The evaluation of a service-connected disorder requires a review of a veteran’s entire medical history regarding that disorder. 38 U.S.C. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Evidence to be considered in an appeal from an initial disability rating was not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson, 12 Vet. App. at 126-27; Hart v. Mansfield, 21 Vet. App. 505 (2007). Such separate disability ratings are known as staged ratings. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to the absence of part, or all, of the necessary bones, joints, and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran contends that he is entitled to a higher evaluation for his service-connected lumbar spine disability, which is currently assigned staged ratings pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5237. Disabilities of the spine are evaluated under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula, 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, a 10 percent rating is warranted where there is forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; the combined range of motion is greater than 120 degrees but not greater than 235 degrees, or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spine contour. A 20 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; 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 evaluation is warranted when there is forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation 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. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). For VA compensation purposes, normal range of motion for the thoracolumbar spine is 90 degrees of forward flexion, 30 degrees of extension, 30 degrees of left and right lateral flexion, and 30 degrees of left and right lateral rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees, consisting of the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. 38 C.F.R. § 4.71a, General Rating Formal, Note (2) and Plate V. At the outset, the Board observes that separate ratings have been assigned for neuropathy of the lower extremities, and they are not at issue in this appeal. The orthopedic limitations are of primary concern herein. The Veteran was afforded a VA examination of his spine in May 2009. The Veteran reported injuring his back in service and experiencing pain ever since. The Veteran reported pain attacks after activities, such as lifting, carrying, sitting more than 20 minutes, or standing or walking for prolonged periods of time. He had decreased motion, stiffness, weakness, and pain with radiation to his lower extremities. There were no abnormal spinal curvatures. Range of motion was to 90 degrees of flexion, 30 degrees of extension with pain at 20 degrees, 30 degrees of bilateral rotation, 30 degrees of left lateral flexion, and 25 degrees of right lateral flexion. The Veteran was able to perform repetitive use testing with no additional pain or limitations. The examiner diagnosed spondylosis, lumbar radiculopathy, and disc herniation. He noted significant effects on his occupation and mild effects on his activities of daily living. VA treatment records from April 2009 and June 2009 showed that the Veteran reported missing work due to his back pain. In a June 2009 rating decision, the RO granted service connection and assigned a 10 percent rating, effective March 2, 2009, the date of claim. VA pain consultation record from September 2009 and July 2011 showed the Veteran was reportedly unable to perform lumbar range of motion due to severe pain during movement. At a January 2012 VA examination, the Veteran reported pain in his back radiating to his lower extremities. During a recent flare-up, he reportedly was unable to get out of his bed for 36 hours and could not work. The examiner noted that the Veteran had incapacitating episodes of at least one week but less than two weeks. Range of motion testing showed flexion was limited to 55 degrees, extension was limited to 10 degrees, bilateral flexion was limited to 15 degrees, and bilateral rotation was limited to 30 degrees. The Veteran was unable to perform repetitive use testing due to pain and fatigue. The examiner noted functional loss due to less movement than normal, weakened movement, excess fatigability, incoordination, pain, disturbance of locomotion, and interference with sitting, standing, and/or weight-bearing. The Veteran had local tenderness and pain to palpation of the right lumbar paraspinal region and abnormal spinal contour. Straight leg testing was positive, bilaterally. The examiner noted that his disability impacted his work as the “Veteran misses days at work, he is in danger of losing his job as a firefighter. He cannot volunteer for overtime or extra details.” A March 2013 rating decision increased the Veteran's evaluation for lumbar spondylosis to 20 percent, effective January 24, 2012. At the April 2017 Board hearing, the Veteran testified that he misses work due to his back disorder. He has pain and difficulty getting out of bed and does not want to jeopardize the safety of others. He reported daily, chronic pain and incapacitating episodes at least six weeks during the past 12 months. The Veteran underwent a VA examination of the thoracolumbar spine in September 2017. The Veteran reported that since 2013, his back condition had progressively increased in pain and that he is bedridden three times per month. He also reported increased left leg radiation and flare-ups of the spine, described as intense pain lasting several days. Regarding functional impairment, the Veteran reported limitations with stooping, bending, lifting, and sitting for prolonged periods. Range of motion testing showed forward flexion limited to 35 degrees, extension limited to 10 degrees, bilateral flexion limited to 10 degrees, right lateral flexion limited to 15 degrees, and left lateral flexion limited to 10 degrees. Pain was noted in all ranges. After repetitive use testing, the Veteran was additionally limited to 15 degrees of flexion, 5 degrees of extension and 5 degrees of bilateral rotation and flexion. The examiner found that pain and weakness significantly limited the Veteran's functional ability with repeated use over time. The Veteran had muscle spasm and guarding resulting in abnormal gait or abnormal spinal contour. He had less movement than normal, weakened movement, and interference with sitting. The examiner noted a diagnosis of intervertebral disc syndrome but no incapacitating episodes, requiring bed rest prescribed by a physician. In November 2018, the Board issued a decision denying increased claims prior to September 20, 2017 and granting a 40 percent rating, thereafter. The Veteran appealed this decision. In September 2019, the Court of Appeals for Veterans Claims (CAVC) vacated the Board’s November 2018 decision pertaining to the spine ratings and remanded them for additional development. In April 2020, the Board remanded the increased ratings claims for additional development. The Veteran was afforded a VA examination in August 2020. The examiner noted a diagnosis of lumbar spondylosis, disc herniation with bilateral radiculopathy. The Veteran reported that his back condition had progressively increased in pain and decreased range of motion and that he has flare ups causing increased pain. Functional impairment impedes his ability to bend, turn, and twist. Range of motion testing showed forward flexion limited to 65 degrees, extension limited to 20 degrees, bilateral flexion limited to 20 degrees, right lateral flexion limited to 20 degrees, and left lateral flexion limited to 20 degrees. Pain was noted in all ranges. There was objective evidence of localized tenderness or pain on palpation and pain with weight bearing and non-weight bearing. Passive range of motion could not be performed or was not medically appropriate. The Veteran was able to perform repetitive use testing with no additional limitations. The examiner found that pain and weakness significantly limited the Veteran’s functional ability with repeated use over time and during flare ups. The Veteran had muscle spasm and guarding resulting in abnormal gait or abnormal spinal contour. The examiner noted no diagnosis of intervertebral disc syndrome. The Veteran uses a brace occasionally for stability. The Veteran's ability to work was impacted by a decreased ability to tolerate weight bearing activities, such as standing, walking, running, climbing, kneeling, squatting, or rising and even prolonged sitting. In an October 2020 VA addendum opinion, the examiner responded to the April 2020 Board remand directives asking for a retrospective opinion regarding the severity of the Veteran's opined that the severity of the service-connected lumbar spine disorder during the entire period on appeal was mild. The motion is limited by pain at the forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation. According to previous DBQ performed on 9/20/17, the severity appears to be worse than on my exam based on worse range of motion measures reported. Upon review of the evidence of record, the Board finds that a rating in excess of 10 percent is not warranted prior to January 24, 2012 for the Veteran's lumbar spine disorder. The May 2009 VA examination showed flexion to 90 degrees and mild effects on the Veteran's employment. The contemporaneous treatment records also showed the Veteran's back pain caused him to miss some work. There is no evidence of flexion limited to less than 60 degrees, abnormal spinal curvature, or incapacitating episodes of more than two weeks. While he did resist range of motion studies reportedly due to pain, when studies during this time were conducted, no significant limitation was shown, and on retrospective exam, mild findings were identified. The Veteran's pain and functional limitation and impact on employment were considered in the 10 percent rating. Therefore, no higher rating is warranted. Additionally, the Board finds that a rating in excess of 20 percent rating is not warranted for the Veteran's back disorder from January 24, 2012 to September 20, 2017. During this period, the Veteran’s flexion of the thoracolumbar spine was documented to be greater than 30 degrees, but not greater than 60 degrees. The Veteran had 55 degrees of flexion during the January 2012 VA examination and the examiner noted a week of incapacitating episodes. These measurements meet the criteria for a 20 percent rating under Diagnostic Code 5237 but no higher. From September 20, 2017, the Board finds that a 40 percent rating should be awarded for the Veteran’s lumbar spine disorder. The September 2017 VA examination showed flexion limited to 15 degrees after repetitive movement. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran is entitled to a 40 percent disability rating. However, there are no findings from this period to suggest that the Veteran experienced unfavorable ankylosis in the thoracolumbar spine to justify the award of a 50 percent rating. In addition, there is no indication that his limitation of motion was of such severity so as to more nearly approximate unfavorable ankylosis of the thoracolumbar spine. See DeLuca, 8 Vet. App. at 206-07. Additionally, although the Veteran stated that he had six weeks of incapacitating episodes, the objective medical evidence does not support a finding that these episodes of bed rest were prescribed by a physician as required for that rating. Additionally, the findings at the August 2020 VA examination do not show that his lumbar spine disorder merits a higher rating. Thus, there is no basis for a disability rating higher than 40 percent. The Board also notes that it has considered the October 2020 addendum retrospective opinion. The examiner reviewed all evidence of record and determined that the Veteran’s lumbar spine disorder was mild in severity during the entire period on appeal. Although the findings of the September 2017 examination report showed entitlement to a higher rating based on more limited ranges of motion, the Veteran's functional limitations and pain have been considered by the Board in all ratings. The Board has also considered whether factors including functional impairment and pain as addressed under 38 C.F.R. §§ 4.40 and 4.45 would warrant a higher rating for the Veteran’s lumbar spine disorder. However, the VA examinations documented that additional limitations due to pain or repetitive use testing and those limitations are reflected in the currently assigned ratings. Based on the foregoing, the Board finds that disability ratings in excess of 10 percent prior to January 24, 2012, in excess of 20 percent from January 24, 2012 to September 20, 2017 and in excess of 40 percent thereafter for a lumbar spine disorder are not warranted. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shana Z. Siesser, 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.