Citation Nr: 21022496 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 16-00 513 DATE: April 16, 2021 ORDER Entitlement to a rating higher than 20 percent for chronic objective orthopedic symptoms of lumbar spine strain with degenerative joint (DJD) and disc disease (DDD), status post-lumbar fusion (low back disability), for the period from July 1, 2020 forward is denied. FINDINGS OF FACT 1. The weight of the evidence of record shows that, beginning on July 1, 2020, the chronic orthopedic symptoms of the low back disability manifested with painful motion on forward flexion greater than 0 to 30 but not greater than 60 degrees. 2. The associated neurological symptoms have not manifested with muscular atrophy. CONCLUSION OF LAW The criteria for entitlement to a rating higher than 20 percent for the chronic objective orthopedic symptoms of low back disability for the period beginning on July 1, 2020 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.400(o), 4.1, 4.40, 4.45, 4.59, 4.71a, General Rating Formula, Spine (General Formula), Diagnostic Code (DC) 5010-5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has multiple Legacy appeal streams. This decision addresses only the rating of his low back disability. On last review of this case, the Board allowed an increased rating from 20 to 40 percent for the period February 1, 2016 to March 17, 2020, and remanded the period beginning on July 1, 2020 to the Agency of Original Jurisdiction (AOJ) for additional development. See 07/22/2020 BVA Decision. As discussed further below, the Board finds that the AOJ substantially complied with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Hence, the Board may proceed with a decision on the merits. The July 2020 remand also directed the AOJ to refer to the Director, Compensation Service (Director), the issue of a total rating based on individual unemployability (TDIU) due to service-connected disabilities on an extraschedular basis for the period July 18, 2015 to January 31, 2016. See 38 C.F.R. § 4.16(b). The Board also remanded the issue of a TDIU for the period beginning on July 1, 2020. The AOJ did as directed, and the Director granted a TDIU for the earlier period indicated. See 08/26/2020 VA Memo; 11/04/2020 VA Memo. The AOJ also granted a TDIU on a schedular basis for the latter period. See 01/21/2021 Rating Decision – Codesheet. Hence, entitlement to a TDIU is no longer at issue. Entitlement to a rating higher than 20 percent for chronic objective orthopedic symptoms of low back disability for the period July 1, 2020 forward is denied. Applicable Law and Regulation Disability ratings are intended to compensate for impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, see 38 C.F.R. §§ 4.1, 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran’s favor. 38 C.F.R. § 4.3. Evaluations are based on functional impairments which impact a veteran’s ability to pursue gainful employment. 38 C.F.R. § 4.10. 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, 205-08 (1995); 38 C.F.R. §§ 4.40, 4.45. In DeLuca, the Court of Appeals for Veterans Claims stated that increased symptomatology due to weakness, fatigue, etc., where possible, should be, where possible stated by examiners in terms of additional loss of range of motion. DeLuca, 8 Vet. App. at 205. The intent of the rating 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. 38 C.F.R. § 4.59. Discussion Current Rating Criteria All spine disabilities, regardless of the diagnostic code assigned, are evaluated under the General Formula. 38 C.F.R. § 4.71. For the thoracolumbar spine, normal ROM on forward flexion is 0 to 90 degrees; backward extension, 0 to 30 degrees; and, lateral flexion and lateral rotation, 0 to 30 degrees. See 38 C.F.R. § 4.71a, Plate V. Regarding the lumbar spine, 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 40 percent rating applies if forward flexion of the thoracolumbar spine is 0 to 30 degrees or less. Id. The Veteran was granted a temporary total rating for the period March 18, 2020 to June 30, 2020 based on convalescence from his lumbar spine surgery. A 20 percent rating was assigned, effective July 1, 2020. The examination report (09/04/2020 C&P Exam, 2nd Entry) reflects that the examiner conducted a review of the claims file as part of the examination. The Veteran reported complaints of painful and limited motion, and difficulty standing, walking, running, lifting, squatting, going up and down stairs, fatigue, and lack of endurance. He reported further that he used Tylenol-4 and medical marijuana for relief of his symptoms. The Veteran reported flare-ups on walking, and prolonged standing and sitting; and, he reported functional loss on squatting and lifting. His thoracolumbar spine manifested forward motion on flexion of 0 to 65 degrees; backward extension to 15 degrees; lateral flexion to 15 degrees bilaterally; and, lateral rotation to 20 degrees, all movements with pain. The examiner noted that the limitation of motion caused functional loss on squatting, and the pain caused functional loss overall. Id. P. 3-4. The examiner noted that there was evidence of pain on weight and non-weight bearing; that passive range of motion (PROM) was the same as active; and, that there was pain on PROM. Id. P. 12; see also Correia v. McDonald, 28 Vet. App. 158 (2016). Repetitive-use testing revealed motion on forward flexion of 0 to 40 degrees, a loss of 25 degrees on forward motion. See DeLuca, 8 Vet. App. at 205-08; see also 38 C.F.R. §§ 4.40, 4.45. The examiner noted that the Veteran’s report of his subjective symptoms on flare-ups and repeated use over time were consistent with the objective findings on clinical examination. Based on the examination findings and the Veteran’s reports, the examiner opined that the Veteran would not experience an additional functional loss of ROM beyond the already-noted additional 25 degrees due to flare-ups and/or repeat use over time. Examination Report, P. 4-5; see also Sharp v. Shulkin, 29 Vet. App. 26 (2017). Accounting for the estimated additional loss of ROM on repetitive use, including repeat use over time, and flare-ups, motion on forward flexion of 0 to 40 degrees more nearly approximates the assigned 20 percent rating for the period beginning on July 1, 2020. The higher, maximum, 40 percent rating was not met or approximated, since motion on forward flexion was greater than 0 to 30 degrees. 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, General Formula. Associated neurological symptoms are rated separately. 38 C.F.R. § 4.71a, General Formula Note (1). The Veteran is separately rated at 40 percent each for associated lumbar radiculopathy of the lower extremities (LE). To warrant the highest rating of 60 percent for the sciatic nerve, the incomplete paralysis must be severe with marked muscular atrophy. 38 C.F.R. § 4.124a, DC 8520. The neurological examination revealed normal muscle strength throughout the LEs, and the examiner noted that there was no muscle atrophy. See 09/04/2020 C&P Exam, 2nd Entry, P. 7. Hence, the objective findings on clinical examination show that the Veteran’s associated lumbar radiculopathy does not manifest at a rate higher than the assigned 40 percent for each LE. 38 C.F.R. § 4.124a, DC 8520. As noted, the Veteran underwent a spinal fusion in March 2020. The examiner noted that the resulting scar residual is 4 x 1 cm, and that the scar is not painful or otherwise symptomatic. The AOJ granted service connection for scar residual and assigned a 0 percent (noncompensable) rating, effective in March 2020. See 01/21/2021 Rating Decision – Narrative; see also 38 C.F.R. §§ 3.400(o), 4.31, 4.118, DC 7804. (Continued on the next page)   The Veteran is entitled to a staged rating for any part of the rating period on appeal where his disability manifested at a higher rate of severity. As discussed in the July 2020 Board decision and based on the evidence set forth in this decision, he has received a staged rating based on the evidence of record. For the above reasons, an increased rating is denied for the period in question. as there is no doubt to resolve, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. T. Snyder 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.