Citation Nr: 21021453 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 17-05 997 DATE: April 13, 2021 ORDER Entitlement to an increased rating of 40 percent, but no higher, for service-connected degenerative arthritis, intervertebral disc syndrome (IVDS), spinal stenosis and lumbosacral strain (lumbar spine disability) is granted for the entire appeal period, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. Throughout the entire appeal period, the Veteran’s lumbar spine disability symptoms more nearly approximated forward flexion of 30 degrees or less, with consideration of functional loss during flare-ups. 2. At no point during the appeal period was unfavorable ankylosis of the entire cervical spine or favorable ankylosis of the entire thoracolumbar spine shown, nor was there indication of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for an increased rating of 40 percent, but no higher, for lumbar spine disability have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.71a, DC 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Air Force from January 1970 to January 1974. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO continued a noncompensable rating for the Veteran’s lumbar spine disability. In March 2019 and September 2020, the Board remanded this appeal for further development, and it has since returned to the Board for adjudication. In January 2021, the RO increased the rating for the lumbar spine disability to 10 percent effective the August 28, 2015 date of claim and 20 percent, effective November 30, 2020. This created a staged rating. As the Veteran did not indicate satisfaction with these increased ratings, the issue of an increased rating for the lumbar spine disability remains on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993) (a veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise). The case has been advanced on the docket pursuant to 38 U.S.C. § 7107 and 38 C.F.R. § 20.900 (c). Increased Rating Disability ratings are determined by comparing a Veteran’s symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Disabilities of the spine are to be rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, DCs 5235-5243. These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, and they “are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine.” 68 Fed. Reg. 51,454 (Aug. 27, 2003). Ratings in excess of 10 percent pertinent to the lumbar spine are provided 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 (20 percent); forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine (40 percent); for unfavorable ankylosis of the entire thoracolumbar spine (50 percent); and for unfavorable ankylosis of the entire spine (100 percent). Id. For VA compensation purposes, unfavorable ankylosis is a condition in which 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 (zero degrees) always represents favorable ankylosis. Id. at Note (5). Note (2) of the General Rating Formula provides that 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. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a. Alternatively, intervertebral disc syndrome (IVDS) can be rated under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). This formula provides a 20 percent 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 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 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 requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Note (1). The Veteran is currently in receipt of a 10 percent rating from August 28, 2015 and a 20 percent rating from November 30, 2020, pursuant to 38 C.F.R. § 4.71a, DC 5242. The Veteran contends that he warrants a higher rating for the entire appeal period. The Board agrees, and, for the following reasons, an increased rating of 40 percent, but no higher, is warranted for the entire appeal period. The Veteran was evaluated for his lumbar spine twice in the appeal period. In an October 2015 VA examination, the Veteran had forward flexion to 75 degrees and combined range of motion to 195 degrees. The Veteran also reported additional functional loss with pain, loss of motion, pain on weightbearing, tenderness of the lumbar area, muscle spasms, and pain and lack of endurance with repeated use over a period of time. The Veteran also reported disturbance of locomotion, interference with sitting and standing, and the occasional use of a cane and brace. However, there was no report of flare-ups, IVDS or ankylosis at this time. On the Veteran’s January 2017 substantive appeal to the Board (via VA Form 9), he noted that his spinal cord is “a mess” and hurts 24 hours a day, it is very hard for him to live a normal life, and he is in pain every day and night. The Veteran was evaluated again in a November 2020 VA examination, where his initial forward flexion was to 40 degrees and initial combined range of motion was 100, and repetitive use forward flexion was to 35 degrees and repetitive use combined range of motion was to 90 degrees. The Veteran was also diagnosed with IVDS and reported flare-ups, describing that he couldn’t bend to put his socks or shoes on, can’t stand, sit or walk for very long, difficult to climb, and is restricted in other activities of daily living. The Veteran also noted pain with functional loss, pain with weight bearing, and the regular use of a cane and brace. No ankylosis was reported, but the VA examiner did conclude that the Veteran would have difficulty performing tasks that required bending and prolonged sitting, walking, or standing. The November 2020 VA examiner did not estimate the additional loss of range of motion that would result during a flare-up, see Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (finding orthopedic examination inadequate where the examiner declined to provide an estimate of the degree of additional loss of motion due to flare-ups because such would require resort to speculation). However, the severity and frequency of the Veteran’s pain during a flare-up indicates a significant limitation in range of motion due to the flare-ups. Moreover, the Veteran described consistent pain, as evidenced by his statement in the January 2017 VA Form 9, and consistent inability to sit, stand or walk for even moderate lengths of time. Therefore, in light of the above and considering the Veteran’s severe low back pain, flare-ups, and the lack of estimate the range of motion of the back during a flare-up, the evidence is at least evenly balanced as to whether the symptoms of the low back disability more nearly approximate forward flexion less than 30 degrees required for a 40 percent rating under the General Rating Formula. Furthermore, in Swain v. McDonald, 27 Vet. App. 219, 224 (2015), the Court held that an “effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that [the veteran’s disability] first manifested.” In Swain, the Court held that the Board erred when it set an effective date based on the speech recognition scores required by 38 C.F.R. § 4.85 (a), rather than 38 U.S.C. § 5110 (b)(3) and 38 C.F.R. § 3.400 (o), which tie an effective date to the earliest date a disability is ascertainable. Id. Based on the above, the Board finds that the Veteran’s lumbar spine disability symptoms did not just suddenly get worse on the November 30, 2020 VA examination and the evidence is approximately evenly balanced as to whether he more nearly approximated the criteria for a 40 percent rating prior to that date. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a 40 percent rating, but no higher, is warranted for the entire appeal period. As 40 percent is the highest schedular rating for limitation of motion, the Board does not have to consider whether the Veteran is entitled to a higher disability rating because of functional loss under §§ 4.40 and 4.45. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). In Johnston, the Court indicated that where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, the cited regulations are not for application. Id. at 84-85 (although the Secretary suggested remand because of the Board’s failure to consider functional loss due to pain, remand was not appropriate because higher schedular rating required ankylosis). For the same reasons, as the Veteran is now in receipt of the highest schedular rating for limitation of motion, the Court’s holding in Correia v. McDonald, 28 Vet. App. 158 (2016) is not for application. There is no other basis for a rating higher than 40 percent. Neither the reports of examination or the Veteran’s statements indicate that there was unfavorable ankylosis of the entire thoracolumbar spine or the entire spine. Similarly, there is no evidence showing that a physician required bed rest for a duration of six weeks during the past 12 months, as required under the IVDS Formula. The Board also notes that the Veteran was service connected and given 20 percent initial ratings in January 2021 for bilateral radiculopathy of the lower extremities for both the femoral and sciatic nerve. However, because the Veteran has not yet filed an appeal to these ratings, jurisdiction has not been conferred to the Board. See John v. Shulkin, No. 16-2487 (Vet. App. Jan. 31, 2018) (mem dec) (Bartley, J.) (although the Veteran was presumed, by virtue of his appeal of the RO’s initial denial of an increased rating for his low back disability, to have been seeking the maximum benefit allowed by law for that disability, and that evaluation issue remained in controversy where less than the maximum benefit had been awarded, “that presumption did not sweep up the jurisdictionally separate radiculopathy claim into his appeal of the increased low back evaluation”; the Veteran was required to file a separate NOD as to the right lower extremity evaluation assigned by the agency of original jurisdiction if he wished to initiate appellate review of that issue the Board did not clearly err in finding that issue not before it on appeal); see also Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). For the foregoing reasons, the evidence is at least evenly balanced as to whether the symptoms of the Veteran’s lumbar spine disability have more nearly approximate forward flexion less than 30 degrees throughout the appeal period. Thus, a rating of 40 percent, but no higher, is warranted for the Veteran’s lumbar spine disability for the entire appeal period. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board JR Cummings, 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.