Citation Nr: 21016027 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 15-40 809 DATE: March 19, 2021 ORDER A higher initial disability rating in excess of 20 percent for service connected lumbar spine degenerative disc disease (DDD) is denied. FINDING OF FACT For the entire initial rating period on appeal, the service connected lumbar spine DDD did not manifest as limitation of flexion of the lumbar spine to 30 degrees or less, ankylosis, or incapacitating episodes having a total duration of at least four weeks. CONCLUSION OF LAW For the entire initial rating period on appeal, the criteria for a higher initial disability rating in excess of 20 percent for lumbar spine DDD have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.21, 4.40, 4.45, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from August 1987 to August 2007. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The instant matter was previously before the Board in February 2014, where the Board, in pertinent part, remanded the issues of service connection for plantar fasciitis and hypertension, and a higher initial disability rating for lumbar spine DDD in excess of 10 percent, for additional development. While on remand, service connection for hypertension was granted in a November 2020 RO rating decision. Further, in a December 2020 rating decision, the RO granted service connection for bilateral fasciitis; therefore, the service connection issues are no longer before the Board. Also, at the time of the December 2020 rating decision, the RO granted a higher initial disability rating of 20 percent for the lumbar spine DDD for the entire initial rating period on appeal, from June 29, 2012. As such, the only remaining question before the Board is whether an initial disability rating in excess of 20 percent is warranted for the service-connected lumbar spine DDD from June 29, 2012. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Review of the record reflects that, per the February 2019 Board remand directives, an adequate VA spinal examination was obtained in November 2020. While on remand, prior to recertification of the instant matter to the Board, the Veteran’s prior representative, the Military Order of the Purple Heart, sent letters in March 2020 and April 2020 informing both the Veteran and VA that they were withdrawing as the Veteran’s representative. The Veteran was informed that VA would assume that the Veteran wished to continue pro se unless he appointed a new representative. Further, the prior representative provided information concerning how the Veteran could obtain a new representative. To date, the Veteran has not obtained a new representative to represent him in the instant matter; therefore, the Board finds that the Veteran wishes to proceed in the instant matter pro se. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Concerning the duty to notify, as the lumbar spine rating issue arises from the Veteran’s disagreement with the initial rating assigned following the grant of service connection, no additional notice is required regarding this downstream element of the service connection claim. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3). Regarding the duty to assist, the record reflects that VA obtained all relevant documentation and provided the Veteran with adequate VA spinal examinations during the course of this appeal. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, the Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Initial Lumbar Spine Disability Rating 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. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. The Veteran has appealed from the initial rating assigned for the service connected lumbar spine DDD. In Fenderson v. West, 12 Vet. App. 119, 125 26 (1999), the Court addressed a similar appeal and directed that such appeal of the initial rating assigned following a grant of service connection was specifically not a claim for an increased disability rating. The Court also directed that separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is 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. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. The Board has thoroughly reviewed all the evidence in the Veteran’s claims file and adequately addresses the relevant evidence in the instant decision. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The General Rating Formula provides for a 20 percent rating for thoracolumbar spine disability for forward flexion of the lumbar spine greater than 30 degrees but not greater than 60 degrees; or, combined range-of-motion of the lumbar 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 limited to 30 degrees or less, or favorable ankylosis of the entire lumbar spine; and a 50 percent disability rating is assigned for unfavorable ankylosis of the entire lumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire lumbar 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 (zero degrees) always represents favorable ankylosis. The diagnostic codes for rating spine disabilities are as follows: 5235 Vertebral fracture or dislocation; 5236 Sacroiliac injury and weakness; 5237 Lumbosacral or cervical strain; 5238 Spinal stenosis; 5239 Spondylolisthesis or segmental instability; 5240 Ankylosing spondylitis; 5241 Spinal fusion; 5242 Degenerative arthritis of the spine (see also DC 5003); 5243 Intervertebral disc syndrome. The IVDS Rating Formula provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. During the pendency of this appeal, various portions of 38 C.F.R. § 4.71a were amended, effective February 7, 2021. The Board has considered whether these changes could result in a staged higher initial disability rating from the effective date of the regulation changes; however, the Board does not find the February 7, 2021 amendments to be relevant to the instant rating decision. Significantly, the amendments do not alter the General Rating Formula or the IVDS Rating Formula, which are the primary focus of the instant rating decision. 38 C.F.R. § 4.71a (2021). The Veteran seeks a disability rating in excess of 20 percent for the service connected lumbar spine DDD. Having reviewed all the evidence of record, lay and medical, the Board finds that, for the entire initial rating period on appeal, the service connected lumbar spine DDD did not manifest as limitation of flexion of the lumbar spine to 30 degrees or less, ankylosis, or incapacitating episodes having a total duration of at least four weeks. A VA spinal examination was performed in November 2013. Per the examination report, the Veteran conveyed having low back pain that had a negative effect on the activities of daily living. The Veteran expressed difficulty bending and squatting. Flare ups of pain were denied. Upon examination the Veteran’s forward flexion showed objective evidence of painful motion at 50 degrees. There was no additional loss of range of motion upon repetitive use testing. The examination report did not note the presence of ankylosis. While the Veteran was reported to have IVDS, there had been no incapacitating episodes over the previous 12 months. Further, there were no additional disabilities due to the service connected back disability. The Veteran received a new VA spinal examination in October 2020. At that time the Veteran conveyed having constant pain in the back, at a level of six out of ten on the pain scale, which limited walking further than half-a-mile, standing still for over 30 minutes, bending, crouching, stooping, or carrying weight in excess of 50 pounds. Per the examination report the Veteran denied flare-ups of pain. Upon range of motion testing the Veteran’s forward flexion was limited to 40 degrees, with no additional loss following repetitive use testing. There was no ankylosis or incapacitating episodes due to IVDS diagnosed. No neurological disabilities other than radiculopathy of the bilateral lower extremities were diagnosed. The Board has reviewed all the relevant evidence in the Veteran’s claims file, to include private and VA treatment records. Such evidence does not include additional range of motion testing results during the initial rating period on appeal, or any evidence of treatment for ankylosis of the lumbar spine or incapacitating episodes. Further, the Veteran has not offered lay evidence descriptions of ankylosis or incapacitating episodes during the initial rating period on appeal. After a review of all the evidence, lay and medical, the Board finds that, for the entire initial rating period on appeal, a disability rating in excess of 20 percent is not warranted for the service connected lumbar spine DDD. Specifically, the evidence reflects that, for the entire initial rating period on appeal, the service connected back disability did not manifest as limitation of flexion of the lumbar spine to 30 degrees or less, ankylosis, or incapacitating episodes having a total duration of at least four weeks. For these reasons, the Board finds the preponderance of the evidence is against an initial disability rating in excess of 20 percent for the service connected lumbar spine DDD, and the higher initial disability rating must be denied. 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5242. Separate Compensable Disability Ratings The Board has considered whether the Veteran is entitled to separate compensable disability ratings for any objective neurologic, or other, disabilities related to the service connected lumbar spine DDD. As discussed above, at the time of the October 2020 VA back examination the Veteran was diagnosed with bilateral lower extremity radiculopathy. In a subsequent November 2020 rating decision, the RO granted separate compensable disability ratings for right and left lower extremity radiculopathy of both the femoral and sciatic nerves. As the Veteran has not expressed disagreement with the effective date and/or initial ratings assigned for the now service-connected bilateral lower extremity radiculopathy, the Board need not further address the question of separate compensable disability ratings for lower extremity radiculopathy in the instant decision. Further, review of the VA back examinations, along with all the other lay and medical evidence of record, conveys no diagnosis of any neurologic or other disabilities related to the service connected lumbar spine DDD, beyond the aforementioned lower extremity radiculopathy. As such, no additional separate compensable disability ratings are warranted for any additional disabilities related to the service connected lumbar spine DDD. Extraschedular Claim is Not Raised (Continued on the next page)   The Board further finds that an extraschedular rating claim has not been raised by the Veteran or the evidence of record. 38 C.F.R. § 3.321(b)(1). The lumbar spine DDD manifested primarily as painful limitation of motion with additional symptoms related to said painful motion. As discussed above, painful limitation of motion is specifically considered under the schedular rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202 (additional limitation of motion due to orthopedic factors are incorporated as part of the schedular rating criteria). Further, any functional limitations imposed by the lumbar spine DDD, such as difficulty walking, standing, or bending, are primarily the result of the back pain caused by engaging in these activities; therefore, consistent with DeLuca, the effects of the Veteran’s back pain and associated limitations on occupational and daily life are specifically contemplated by the schedular rating criteria. In this case, the problems reported by the Veteran are specifically contemplated by the schedular rating criteria. In the absence of exceptional factors associated with the service connected lumbar spine DDD, the Board finds that a claim for extraschedular rating under 38 C.F.R. § 3.321(b)(1) has not been raised. Further, as the evidence of record reflects that the Veteran was employed as of November 2019, the Board need not address entitlement to a total disability rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) at this time. See 38 C.F.R. § 4.16. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Blowers, 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.