Citation Nr: 21023291 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-08 281 DATE: April 20, 2021 ORDER A 20 percent rating for a service-connected low back strain with degenerative arthritis L4-L5 and L5-S1 and L5-S1 paracentral disc protrusion or herniation displacing the right S1 nerve root (hereinafter “low back condition”) is granted, subject to the rules and regulations governing the award of monetary benefits. REMANDED Entitlement to a separate compensable rating for neurological abnormalities associated with the service-connected low back condition is remanded. FINDING OF FACT During the relevant period on appeal, the Veteran’s service-connected low back condition has been manifested by degenerative arthritis L4-L5 and L5-S1 and L5-S1 paracentral disc protrusion or herniation displacing the right S1 nerve root, which was a progression of the service-connected low back strain; forward flexion was shown to be 40 degrees and 60 degrees with pain during flare-ups. CONCLUSION OF LAW The criteria for a 20 percent rating for service-connected low back condition have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.115a, Diagnostic Code (DC) 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1999 to May 2005. In September 2019, a videoconference hearing was held before the undersigned Veterans Law Judge (VLJ). Based on his testimony, this matter was remanded by the Board in September 2019 immediately following the hearing. The Veteran subsequently requested an additional videoconference hearing, which was held before the undersigned VLJ in February 2020. A transcript is of record. Although there is no transcript from the September 2019 hearing, it is noted that the Veteran had an opportunity to present at an additional hearing before the undersigned VLJ, and a transcript from the subsequent hearing is of record. Accordingly, appellate review may proceed without prejudice to the Veteran. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. 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. Entitlement to a compensable rating for a low back condition. The threshold issue in this case is whether the Veteran’s current low back symptomatology is associated with or a progression of his service-connected low back strain. After a thorough review of the record, the Board finds that the Veteran’s current low back symptomatology is associated with or a progression of his service-connected low back strain, and the matter has been characterized accordingly and assigned an appropriate rating of 20 percent, but no higher, as explained further below. The Board also acknowledges that the Veteran appears to have diagnoses of radiculopathy or neurological defects as a result of his service-connected low back condition. VA regulations provide that any associated objective neurologic abnormalities are to be evaluated separately under the appropriate diagnostic code; thus, the issue of whether a separate rating is warranted for any neurological abnormalities will be addressed in the remand section below. See 38 C.F.R. § 4.71a, Note (1). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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. The disabilities of the spine that are rated under the General Rating Formula for Diseases and Injuries of the Spine include vertebral fracture or dislocation (DC 5235), sacroiliac injury and weakness (DC 5236), lumbosacral or cervical strain (DC 5237), spinal stenosis (DC 5238), spondylolisthesis or segmental instability (DC 5239), ankylosing spondylitis (DC 5240), spinal fusion (DC 5241), degenerative arthritis of the spine (DC 5242) (for degenerative arthritis of the spine, see also DC 5003) (prior to Feb. 7, 2021), degenerative arthritis, degenerative disc disease other than IVDS (also, see either DC 5003 or DC 5010) (effective Feb. 7, 2021), IVDS (DC 5243), and complete traumatic paralysis (DC 5244) (effective Feb. 7, 2021). A review of the record shows that the Veteran was originally service-connected for a low back sprain, rated noncompensable under 38 C.F.R. § 4.124a, DC 5237. As described below, however, the Board finds that the Veteran’s service-connected low back disability is most accurately characterized by DC 5242, degenerative arthritis of the spine. The Board notes that there have been changes to the musculoskeletal regulations effective February 7, 2021. The Board may continue the old rating criteria to rating periods prior to February 7, 2021 but may apply whichever set of criteria is more favorable to periods after February 7, 2021 if the claim was pending prior to that date. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Effective February 7, 2021, DC 5242 was amended to include degenerative disc disease other than IVDS. DC 5244 was also added to add paraplegia and quadriplegia. The Board notes that the spine regulations were also amended to state that DC 5243 governing IVDS should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root; and that DC 5242 should apply to all other disc diagnoses. See 85 Fed. Reg. 76462 (Nov. 30, 2020) (effective February 7, 2021). This change does not impact the evaluation in this case as the Veteran does not have any evidence of incapacitating episodes that would warrant a compensable rating under DC 5243. With respect to arthritis, DC 5010 was clarified to rate post-traumatic arthritis according to limitation of motion, dislocation, or instability. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned 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. 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. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Note (2) 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 38 C.F.R. § 4.71a. When rating degenerative arthritis of the spine (DC 5242), in addition to consideration of rating under the General Rating Formula for Diseases and Injuries of the Spine, rating for degenerative arthritis under DC 5003 should also be considered. 38 C.F.R. § 4.71a. Additionally, DC 5243 provides that intervertebral disc syndrome (IVDS) (preoperatively or postoperatively) be rated either under the General Rating Formula for Disease and Injuries of the Spine, or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, DC 5243. The Formula for Rating IVDS Based on Incapacitating Episodes provides a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months. Id. [An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bedrest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Note 1 following Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.] It is the intent of the schedule to recognize painful motion with joint or periarticular pathology as productive of disability. It is also 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. Turning to the relevant evidence of record, VA and private treatment records document the Veteran’s persistent complaints of and treatment for low back pain. In July 2015, the Veteran underwent a VA examination to evaluate the severity of his low back condition. The VA examiner noted that the Veteran was diagnosed with lumbosacral sprain or strain and IVDS, both of which had been diagnosed in approximately 2005. Range of motion testing showed forward flexion at 45 degrees; extension at 20 degrees; right and left lateral flexion at 15 degrees; and right and left lateral rotation at 15 degrees. Pain was further noted on active movement and repetitive movement, as well as on weight-bearing or non-weight bearing motion. Moderate localized tenderness or pain on palpation of joints or soft tissue was noted. The examiner indicated that the Veteran had functional loss due to less movement than normal and pain movement. During flare-ups, the Veteran’s forward flexion was noted to be 40; extension at 15 degrees; right and left lateral flexion at 10 degrees; and right and left lateral rotation at 10 degrees. Muscle strength was normal. While the VA examiner noted that the Veteran’s low back condition caused less movement than normal due to ankylosis, limitation or blocking, or adhesions, ankylosis of the spine was not demonstrated on examination. The VA examiner found that the reported symptoms of IVDS in concurrence with supportive findings on examination indicated that the Veteran’s diagnosis was low back strain with IVDS, which constituted a progression. November 2015 magnetic resonating imaging demonstrated mild degenerative changes at L4-L5 and L5-S1 with disc protrusion. On December 2015 VA examination, the VA examiner noted that radiculopathy was caused by compression of the nerve root as it passed through the vertebrae, which was typically the result of bony entrapment or a herniated disc. The VA examiner found that the July 2015 examiner misdiagnosed the Veteran. The VA examiner explained the Veteran’s MRI showed L4-L5 degenerative changes and L5-S1 degenerative changes with disc protrusion and lumbar radiculopathy with IVDS, which was not a progression of the Veteran’s service-connected low back strain. On January 2020 VA examination, the VA examiner noted that the Veteran had a diagnosis of degenerative arthritis of L4-L5 and L5-S1 and L5-S1 paracentral disc protrusion or disc herniation displacing the right S1 nerve root based on the November 2015 MRI. The VA examiner found that this diagnosis was a correction of the service-connected condition of lumbar strain. The Veteran reported that his low back pain was aggravated by movements with stabbing, shooting pain to the lower extremities, and that the pain limited running, bending, lifting, walking prolonged distances, and standing. Active and passive range of motion testing showed forward flexion at 70 degrees; extension at 15 degrees; right and left lateral flexion at 20 degrees; right lateral rotation at 25 degrees; and left lateral rotation at 20 degrees. Pain was noted on examination for non-weight bearing and weight bearing for forward flexion, extension, and left lateral flexion, and moderate localized tenderness or pain on palpation was demonstrated. While the VA examiner noted that the Veteran’s low back condition caused less movement than normal due to ankylosis, limitation or blocking, or adhesions, ankylosis of the spine was not demonstrated on examination. Strength was noted to be normal, or 5/5, except for left hip flexion and left knee extension, which were noted to be 4/5, or active movement against some resistance. Pain and flare-ups were noted to limit range of motion, specifically forward flexion at 60 degrees; extension at 10 degrees; right and left lateral flexion at 15 degrees; right lateral rotation at 20 degrees; and left lateral rotation at 15 degrees. The Veteran was noted to have muscle spasm resulting in abnormal gait or abnormal spine contour, specifically spasms in the lower back and paraspinal muscles. Following the January 2020 VA medical opinion, the Regional Office requested addendum opinions from the VA examiner to explain why the mild degenerative changes shown in 2015 imaging studies were a progression of the in-service low back strain, because there were no imaging studies during service which showed the degenerative changes. In an August 2020 VA addendum opinion, the VA examiner explained that the low back strain during military service was not confirmed with radiology studies, and the November 2015 MRI showed degenerative changes that would be consistent with a condition that occurred years previously. In a September 2020 VA addendum opinion, the VA examiner further clarified that the Veteran’s current diagnosis was considered a progression of the service-connected diagnosis of low back strain, as there may have only been enough evidence at the time of the initial examinations in 2005 and 2006 to diagnose a low back strain, but that additional evidence confirmed that the condition had worsened over time with the current diagnosis being more accurate. In a September 2020 separate VA medical opinion, the VA examiner found that the Veteran’s current diagnosis of degenerative arthritis L4-L5 and L5-S1 and L5-S1 paracentral disc protrusion or herniation displacing the right S1 nerve root, hereinafter “current diagnosis,” was first noted on the November 2015 MRI, which was approximately 10 years following military service. The VA examiner indicated that the January 2020 VA examiner had shown “confusion” regarding how to interpret the Veteran’s current diagnosis, which he opined had been most likely due to the previous VA examiner’s incomplete review of the medical records. The VA examiner noted that the in-service lumbar spine x-ray images showed normal results consistent with low back pain from a lumbar sprain with no findings of the Veteran’s current diagnosis. The VA examiner further opined that the previous VA examiner’s rationale was based on mere speculation, and that the Veteran’s worsening back pain was from the development of his new and separate current diagnosis, which was the result from wear that occurs naturally with aging. The VA examiner concluded that the Veteran was “not service connected for aging” and found that it was less likely than not that the Veteran’s current diagnosis was a progression of the service-connected lumbar strain. During the February 2021 Board hearing, the Veteran reported that he was in constant pain on a daily basis, which had progressed over the previous several years. The Veteran reported that his back pain and flare-ups impeded his ability to exercise and exacerbated his depression. The Veteran noted that his current excruciating nerve pain was the same nerve pain and muscle spasms he experienced during service. Regarding the threshold issue of whether the Veteran’s current low back condition of degenerative arthritis L4-L5 and L5-S1 and L5-S1 paracentral disc protrusion or herniation displacing the right S1 nerve root is a progression of his service-connected low back strain, the Board finds that it is. The July 2015 VA examination explained clearly that the Veteran had been diagnosed with IVDS during service and that the current diagnosis was a progression of the service-connected low back condition. The January 2020 VA examiner similarly found that the current diagnosis was a correction of the diagnosis of lumbar strain, and further explained in the August 2020 addendum opinion that the degenerative changes would be consistent with a condition that occurred years previously. Both examiners conducted in-person evaluations and indicated that they reviewed the Veteran’s complete record in rendering the above opinions. Accordingly, the Board affords the July 2015, January 2020, and August 2020 VA medical opinions much probative value. The Board further finds the Veteran’s lay statements of record and hearing testimony to be credible and are afforded much probative value. The Board acknowledges the December 2015 and September 2020 VA medical opinions in which the VA examiners found that the current diagnosis was not a progression of the service-connected lumbar spine disability. However, these opinions are based in part on the finding that the degenerative changes did not manifest during military service. As arthritis is a presumptive chronic disease, it is not required to manifest during military service in order to be caused by or related to military service for VA purposes. The Veteran’s service treatment records show he sustained a low back injury during service and was diagnosed with lumbar segmental joint dysfunction, sacroiliac joint dysfunction, and lumbar facet syndrome in December 2003. He was diagnosed with chronic low back pain due to strain and overuse in March 2006. Furthermore, the December 2015 and September 2020 medical opinions did not address the Veteran’s ongoing continuity of symptomatology since service in finding that the current diagnosis was not a progression of the service-connected low back condition. Accordingly, the December 2015 and September 2020 VA medical opinions are afforded little probative value in the determination of whether the current diagnosis is a progression of the service-connected low back condition. Consequently, turning to the issue of whether an increased rating is warranted, the Board finds that the evidence of record demonstrates that a 20 percent disability rating is warranted. On July 2015 VA examination, the Veteran’s forward flexion was 40 degrees during flare-ups. On January 2020 VA examination, the Veteran’s forward flexion was noted to be 60 degrees during flare-ups. As indicated, it is the intent of the schedule to recognize painful motion with joint pathology as productive of disability. Thus, the Board has determined that the Veteran’s low back condition is manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. Accordingly, a 20 percent rating for the service-connected low back condition is warranted. A higher rating is not warranted, as there is no evidence of ankylosis or forward flexion to 30 degrees or less. While the record indicates the Veteran had a diagnosis of IVDS during the relevant period on appeal, the record is silent as to whether the Veteran was prescribed bedrest by a physician and treatment by a physician due to any incapacitating episodes. Rather, the clinical and reported findings more nearly approximated the criteria for a 20 percent rating. 38 C.F.R. § 4.7. The Board has considered the Veteran’s reports of worsening low back pain, pain on range of motion, flare-ups, and limitations on running, bending, lifting, walking prolonged distances, and standing. Although it is clear he has experienced functional limitations, the Board finds that there is insufficient objective evidence to conclude his pain and other symptoms have been associated with such additional functional limitation as to warrant a rating in excess of 20 percent. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Moreover, to the extent the Veteran has indicated his back pain and flare-ups exacerbate his depression, it is noted that the Veteran is separately service-connected for posttraumatic stress disorder with major depressive disorder. Accordingly, a rating in excess of 20 percent for the service-connected low back condition is not warranted. REASONS FOR REMAND The record shows that the Veteran has a diagnosis of bilateral lower extremity radiculopathy. The record further indicates that the Veteran has reported bladder control problems and urinary urgency due to back pain. Accordingly, remand is warranted for a clarification opinion to address the etiology of any neurological abnormalities. The matter is REMANDED for the following action: (Continued on the next page)   Obtain a VA medical opinion from an appropriate VA examiner to determine the nature and etiology of any neurological abnormalities, to specifically include bilateral lower extremity radiculopathy and any bladder control problems or urinary urgency (a physical examination may be conducted, if deemed necessary). The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner. The examiner is asked to diagnose any current neurological abnormalities and opine as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed neurological abnormality is a residual associated with the Veteran’s service-connected low back condition. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Griffin, 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.