Citation Nr: 21022238 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 15-03 777A DATE: April 15, 2021 ORDER Entitlement to a disability rating in excess of 40 percent for a lumbar spine disability from August 30, 2016, is denied. FINDING OF FACT From August 30, 2016, the evidence of record indicates the Veteran's lumbar spine disability did not manifest as ankylosis, either favorable or unfavorable. CONCLUSION OF LAW The criteria for a disability rating in excess of 40 percent for a service-connected lumbar spine disability, from August 30, 2016, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1975 to May 1975, December 1978 to July 1991, and from December 1995 to September 1996. This appeal is before the Board of Veterans’ Appeals (Board) from an April 2012 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The procedural history for this case is as follows: In an April 2019 Board decision, the Board denied entitlement to a disability rating in excess of 10 percent for a lumbar spine disability prior to August 30, 2016, and remanded his claim of entitlement to a disability rating in excess of 10 percent for a lumber spine disability after August 30, 2016. Further development followed and in a January 2021 supplemental statement of the case (SSOC), the RO granted the Veteran a 40 percent disability rating for his lumbar spine disability from August 30, 2016. As the 40 percent rating was not a full grant of the benefit sought on appeal, the Veteran’s claim returned to the Board and the Board finds substantial compliance with the April 2019 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). This Veteran’s service-connected lumbar spine disability is rated under 38 C.F.R. § 4.71(a). Disabilities of the spine are evaluated under a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). The criteria of the General Rating Formula are applied with and 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. Associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). With regard to the thoracolumbar spine, the General Rating Formula for Diseases and Injuries of the Spine (Diagnostic Codes 5235 to 5243) provides a 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. Id. When evaluating joint disabilities rated on the basis of limitation of motion, the VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). 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. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, the VA must determine the overall functional impairment due to these factors. Alternatively, intervertebral disc syndrome (IVDS) is rated either under the General Rating Formula or alternatively under the Formula for Rating IVDS on Incapacitating Episodes, whichever method results in a higher disability rating. The Formula for Rating IVDS Based on Incapacitating Episodes provides a 60 percent disability rating is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. 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. Id. at Note (1). Turning to the evidence of record, in October 2016 a VA treatment record indicates he started undergoing physical therapy to treat lower back pain. In January 2017 VA treatment records indicate he received treatment for lower back pain which he rated as an “8 out of 10” and treatment notes reveal he experienced “decreased forward flexion and backward extension of lumbosacral spine.” The record also indicates his lower back was negative for tenderness upon palpitation. An MRI report a few days after this treatment indicates his back pain was due to his lumbar spondylosis with radiculitis. In October 2017 VA treatment records indicate he received an injection called a “facet medial branch block” to treat his lower back pain. VA treatment records indicate he received treatment for low back pain on four other occasions in 2017 and twice in 2018. During the Veteran’s June 2018 Board hearing he stated that he had upcoming back surgery to “burn the nerves” and assist in alleviating his back pain. On June 19, 2018 VA treatment records indicate he received another “facet medial branch block” to treat his lower back pain. VA treatment records in May and June 2019 and December 2020 indicate his back pain is “stable.” In January 2021 the Veteran underwent a VA thoracolumbar spine conditions examination report which included a review of the claims file, a recitation of complaints and medical history, and physical examination results. The Veteran subjectively reported flare-ups involving severe pain requiring him to stop what he is doing and “rest his back against something hard” until that pain subsides which occurs “1-2 times a month.” His forward flexion was 30 degrees with pain; forward extension was 10 degrees with pain; right and left lateral flexions were 10 degrees with pain for each test; his right lateral rotation was 10 degrees with pain and his left lateral rotation was 20 degrees with pain. The report also determined there was moderate localized tenderness upon palpitation and evidence of pain with weight bearing. He performed a repetitive use tests and no additional functional loss was noted. He was not examined after repetitive use over time and the examination was medically consistent with the Veteran’s statements and pain and fatigue contributed to functional loss. His forward flexion was 30 degrees with pain; forward extension was 10 degrees with pain; right and left lateral flexions were 10 degrees with pain for each test; his right lateral rotation was 10 degrees with pain and his left lateral rotation was 20 degrees with pain. He was not examined during a flare-up and the results were medically consistent with his statements and pain and fatigue contributed to functional loss. However, the examiner was not able to describe in terms of range of motion and the Veteran described his flare-ups lasting “a few hours up to a day” involving severe pain. The report determined he was negative for guarding and muscle spasm, muscular atrophy, and ankylosis. The report noted additional factors contributing to his disability, including disturbances of locomotion and interference with standing, which were described as: Walking or standing for more than 15 minutes causes increased pain as well and tingling and numbness to the right thigh. The report determined he was positive for IVDS but did not have any episodes of bed rest within the last 12 months. The report also noted he used an occasional back brace, cane, and bilateral leg braces. The remarks section includes a Correia examination which determined he experienced objective evidence of pain in non-weight bearing and the examiner was unable to perform passive range of motion testing due to pain. After a review of the claims file in conjunction with the applicable laws and regulations, the Bord finds the preponderance of the evidence is against finding the Veteran’s lumbar spine disability warrants a disability rating in excess of 40 percent from August 30, 2016. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. Here, during his January 2021 VA examination, he was negative for ankylosis, either favorable or unfavorable. Moreover, although the examiner did not provide an estimation of the range of motion during a flare-up, the Veteran was able to perform a repetitive use test and a repetitive use over time test indicating he maintained range of motion. Furthermore, the evidence of record is devoid of any indication his lumbar spine disability manifested as the functional equivalent of ankylosis and the Board finds the evidence weighs against such a finding. See DeLuca, 8 Vet. App. at 204-07. Additionally, although IVDS was diagnosed in the January 2021 VA examination, there is no indication physician prescribed bed rest occurred. Diagnostic Code 5243, 38 C.F.R. § 4.71a. Indeed, the evidence of record does not contain any other evidence, including lay statements, to indicate the Veteran's lumbar spine disability has manifested at a disability rating higher than 40 percent. As such, and absent any evidence to the contrary, the preponderance of the evidence is against finding that the Veteran's lumbar spine disability warrants a rating in excess of 40 percent from August 30, 2016. To the extent that any higher level of compensation is sought from August 30, 2016, the preponderance of the evidence is against the claim. Hence the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Accordingly, the Veteran's claim for a disability rating in excess of 40 percent for his service-connected lumbar spine disability from August 30, 2016, is denied. [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Law Clerk, Tyler R. Masters 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.