Citation Nr: 21023824 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-02 297 DATE: April 21, 2021 ORDER The reduction of the 40 percent rating for the lumbar spine disability to 10 percent was proper and the appeal as to this issue is denied. A rating higher than 40 percent for the lumbar spine disability prior to September 1, 2013, is denied. A rating higher than 10 percent for the lumbar spine disability from September 1, 2013, is denied. FINDINGS OF FACT 1. The Veteran’s thoracolumbar spine forward flexion substantially improved in the two-year span between the September 2010 and September 2012 VA examinations; the improvement noted in the lumbar spine disability between September 2010 and September 2012 reflects an improvement in the Veteran’s ability to function under ordinary conditions of life and work. 2. Prior to September 1, 2013, the Veteran’s lumbar spine disability was not manifested by unfavorable favorable ankylosis of the entire thoracolumbar spine or incapacitating episodes of intervertebral disc syndrome (IVDS) having a total duration of at least 6 weeks. 3. Since September 1, 2013, the Veteran’s lumbar spine disability has not been manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoraco-lumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; or incapacitating episodes of IVDS having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. CONCLUSIONS OF LAW 1. The criteria for restoration of the 40 percent rating for the lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344(c), 4.71a, Diagnostic Codes 5235-5243. 2. The criteria for rating higher than 40 percent for the lumbar spine disability prior to September 1, 2013, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. 3. The criteria for rating higher than 10 percent for the lumbar spine disability from September 1, 2013, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service from January 1982 to March 1985. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The claims were remanded by the Board in June 2019.   A transcript of the Veteran’s September 2018 testimony at a videoconference hearing before the undersigned Veterans Law Judge is of record. 1. Whether the reduction for the service-connected lumbar spine disability from 40 percent to 10 percent disabling effective September 1, 2013, was proper The 40 percent rating for the Veteran’s lumbar spine disability was assigned in a November 2010 rating decision effective July 13, 2010, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242. Diagnostic Code 5242 was and continues to be rated under the General Rating Formula for Diseases and Injuries of the Spine. The 40 percent rating was reduced to 10 percent effective September 1, 2013, in the June 2013 rating decision that is the subject of this appeal. Where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. VA must also notify the veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. 38 C.F.R. § 3.105(e). After completing the predetermination procedures, VA must send the veteran written notice of the final action, which must set forth the reasons for the action and the evidence upon which the action is based. Where a reduction of benefits is found warranted and the proposal was made under the provisions of 38 C.F.R. § 3.105(e), the effective date of the final action shall be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires. 38 C.F.R. § 3.105(i)(2). In the present case, a March 2013 rating decision proposed the reduction of the rating for the Veteran’s lumbar spine disability. The Veteran was notified of the proposed action in a March 7, 2013, letter and was given the required 60 days to present additional evidence before the RO subsequently implemented the rating reduction. The RO specifically informed the Veteran that he could submit medical or other evidence to show that the RO should not make this change and notified him that the best type of evidence to submit was a statement from a physician who recently treated or examined him that included detailed findings about the condition. The RO then notified the Veteran of the action taken in the June 2013 rating decision and his appellate rights in a June 13, 2013, letter. Therefore, VA met the due process requirements under 38 C.F.R. § 3.105(e) and (i). The Board must now consider whether the reduction in rating was proper. The criteria for a rating reduction are found at 38 C.F.R. § 3.344. Under 38 C.F.R. § 3.344, sections (a) and (b) are to be applied in cases involving an evaluation that has continued at the same level for five years or more; section (c) is to be applied if the RO reduced an evaluation that had been in effect for less than five years. In this case, the 40 percent evaluation for the lumbar spine disability was in effect between July 13, 2010, and September 1, 2013, a period of less than five years. As such, only 38 C.F.R. § 3.344(c) applies. Pursuant to this regulatory provision, reexamination of a service-connected disability must show improvement in order to reduce a rating. In addition, it must also be determined that any such improvement reflects an improvement in the veteran’s ability to function under ordinary conditions of life and work. 38 C.F.R. §§ 4.2, 4.10; Brown v. Brown, 5 Vet. App. 413, 420-21 (1993). Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent rating was and is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 10 percent rating was and is assigned 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. 38 C.F.R. § 4.71a. In this case, the Veteran underwent a VA examination in September 2010 during which he exhibited forward flexion of the thoracolumbar spine to 25 degrees with pain setting in at 40 degrees. The November 2010 rating decision that granted the 40 percent rating cited the findings from this examination. The Veteran underwent VA reexamination in September 2012 in conjunction with his claim for increased rating. He exhibited forward flexion of the thoracolumbar spine to 80 degrees with pain setting in at 75 degrees. It is noted that he underwent a right sided L4-5 hemilaminectomy, medial facetectomy, L5 foraminotomy, and L4-5 discectomy, on September 21, 2011. The preponderance of the evidence supports the reduction of the Veteran’s lumbar spine disability from 40 percent to 10 percent effective September 1, 2013, under the General Rating Formula for Diseases and Injuries of the Spine. While the Board acknowledges the Veteran’s assertion that he is still on pain medication for his back and that it has not gotten better, his thoracolumbar spine forward flexion improved 55 degrees in the two-year span between the September 2010 and September 2012 VA examinations. In addition, there was an improvement in the degree at which pain set in during forward flexion; during the September 2010 VA examination, the Veteran had pain for 15 degrees of flexion and during the September 2012 VA examination, the Veteran had pain for five degrees of flexion. The Veteran was also able to perform repetitive use testing during the September 2012 VA examination and lost five degrees of motion after that repetitive use, which the examiner concluded did not result in any functional loss and/or functional impairment. Finally, the September 2012 VA examiner also noted that the Veteran’s posture and gait were within normal limits and that his back disability did not impact his ability to work. The improvement noted in the lumbar spine disability between the September 2010 and September 2012 VA examination reflects an improvement in the Veteran’s ability to function under ordinary conditions of life and work. The Board acknowledges the Veteran’s testimony that the September 2012 examination may have been inadequate and that another VA examination might show some evidence to support a rating higher than 10 percent. A November 2019 VA examination, however, forward flexion of the thoracolumbar spine was 70 degrees and although pain was noted on examination to cause functional loss, the Veteran was able to perform repetitive use testing without additional loss of function or range of motion. Although this examination demonstrates that his thoracolumbar spine forward flexion decreased 10 degrees in the seven-year span between the September 2012 and November 2019 VA examinations, the range of motion exhibited by the Veteran during the November 2019 VA examination does not more nearly approximate the rating criteria to support a rating higher than 10 percent under the General Rating Formula for Diseases and Injuries of the Spine. In other words, the November 2019 VA examination supports the Board’s determination that the reduction of the Veteran’s lumbar spine disability from 40 percent to 10 percent effective September 1, 2013, was proper. Increased Ratings 2. Entitlement to a rating higher than 40 percent for the lumbar spine disability prior to September 1, 2013 3. Entitlement to a rating higher than 10 percent for the lumbar spine disability from September 1, 2013 Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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). Service connection for the lumbar spine disability was granted in a July 1985 rating decision, which assigned a noncompensable rating under 38 C.F.R. § 4.71a, Diagnostic Code 5295, effective March 7, 1985. The rating was increased on two occasions since then, first to 20 percent effective June 20, 2007, and then to 40 percent effective July 13, 2010, both under 38 C.F.R. § 4.71a, Diagnostic Code 5242. See July 2008 and November 2010 rating decisions. The Veteran filed a claim for increased rating that was received in December 2011. As discussed above, a March 2013 rating decision proposed a reduction of the lumbar spine disability rating which was implemented in the June 2013 rating decision that is the subject of this appeal; a 10 percent rating was assigned under Diagnostic Code 5242 effective September 1, 2013. The Board has determined that the reduction of the rating from 40 to 10 percent effective September 1, 2013, was proper. Given the foregoing, the Board must determine whether the Veteran is entitled to a rating higher than 40 percent prior to September 1, 2013, and a rating higher than 10 percent from that date. Since the Board granted entitlement to a temporary total (100 percent) rating under 38 C.F.R. § 4.30 following lumbar spine surgery performed on September 21, 2011, and that grant was effectuated in a May 2020 rating decision that assigned the temporary rating until December 31, 2011, that timeframe (September 21, 2011 to December 31, 2011) is not for consideration as a 100 percent rating is the maximum assignable and any evidence related to the level of disability within that timeframe will not be discussed. 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, Diagnostic Codes 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). Any associated objective neurologic abnormalities including, but not limited to, bowel or bladder impairment, are to be rated separately from orthopedic manifestations under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1). 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, 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 rating criteria for the spine were amended on February 7, 2021. Diagnostic Code 5242 was amended to make clear that its application was for degenerative arthritis/disc disease of the spine other than IVDS. Diagnostic Code 5243 was amended to make clear that it should only be applied for disc herniation with compression and/or irritation of the adjacent nerve root, and that all other disc diagnoses should be rated under Diagnostic Code 5242. The Veteran seeks higher ratings than those assigned for his lumbar spine disability. He testified that he cannot wear any tennis shoes because they are not hard enough; that he does not stand a long time because it felt like his back is collapsing; that he is on medication for back pain and that pain did not improve after his back surgery; that his back disability limits the quality of his activities like sitting and driving; and that he has back spasms quite often. The preponderance of the evidence is against the assignment of a rating higher than 40 percent for the lumbar spine disability prior to September 1, 2013. To merit the assignment of the next highest (50 percent) rating provided under the General Rating Formula, the evidence must show that the Veteran has unfavorable ankylosis of the entire thoracolumbar spine. The evidence in this case does not support such a finding. Rather, the Veteran was able to achieve flexion to 80 degrees and 25 degrees of extension, bilateral lateral rotation and bilateral lateral flexion during the September 2012 VA examination; and there is no evidence of ankylosis in VA or private treatment records dated prior to September 1, 2013. The assignment of a rating higher than 40 percent for the Veteran’s lumbar spine disability is also not warranted under the IVDS Formula. This is so because there is no evidence of IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. There is no indication from review of the evidence of record dated prior to September 1, 2013, which includes private records dated before the Veteran’s lumbar spine surgery, that he had been prescribed bed rest by a physician at any time during the period in which he is rated at 40 percent, and the September 2012 VA examiner indicated that there was no IVDS. Since 40 percent is the highest schedular rating for limitation of motion of the spine, the regulatory provisions (38 C.F.R. §§ 4. 40, 4.45) pertaining to functional loss are not for application prior to September 1, 2013. Sharp v. Shulkin, 29 Vet. App. 26 (2017); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). The Board has considered Correia v. McDonald, 28 Vet. App. 158 (2016), which holds that 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. However, given the Veteran is receiving the maximum rating based on limitation of motion of the thoracolumbar spine prior to September 1, 2013, and a higher rating requires unfavorable ankylosis of the entire spine, there is no prejudice in any VA examination that may have failed to comply with § 4.59 as interpreted in Correia. The preponderance of the evidence also does not support the assignment of a rating higher than 10 percent for the lumbar spine disability at any time since September 1, 2013. To merit the assignment of the next highest (20 percent) rating provided under the General Rating Formula, the evidence must show that the Veteran had 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. The evidence in this case does not show any of these manifestations. Rather, the Veteran exhibited forward flexion limited to 70 degrees during the November 2019 VA examination and his combined thoracolumbar spine range of motion at that time was 195 degrees. The Board acknowledges the Veteran’s testimony that he has back spasms and finds this assertion both competent and credible; muscle spasms were also noted during the November 2019 VA examination. However, the Veteran has not reported, and the available medical evidence does not show, that the spasms resulted in abnormal gait or abnormal spinal contour. Rather, the November 2019 VA examiner specifically noted that the muscle spasm did not result in abnormal gait or abnormal spinal contour. The assignment of a rating higher than 10 percent for the Veteran’s lumbar spine disability is also not warranted under the IVDS Formula at any time since September 1, 2013. This is so because there is no indication, and the Veteran has not reported, that any bed rest has been prescribed by a physician during the relevant timeframe and the November 2019 VA examiner specifically noted IVDS without incapacitating episodes. Consideration has been given to any functional impairment and any effects of pain on functional abilities due to the Veteran’s service-connected lumbar spine disability since September 1, 2013. The Board acknowledges the Veteran’s subjective complaints related to functional loss and functional impairment made in testimony and during the November 2019 VA examination. The Board also acknowledges the objective evidence during that examination of pain with range of motion testing, pain with weight bearing, and mild tenderness to palpation along the lumbar spine. In this case, however, the Board does not find any additional functional loss that is not contemplated by the currently assigned 10 percent rating. The Veteran has described additional motion loss or functional impairments but denied flare-ups during the November 2019 VA examination, and that examiner indicated that the Veteran was able to perform repetitive use testing without loss of motion due to pain, fatigue, weakness, or lack of endurance and that there was no additional loss of function on examination. Although the examiner did conclude that pain, fatigue and lack of endurance significantly limit functional ability with repeated use over a period of time, the loss of motion described by the examiner was only five degrees less than what the Veteran was able to achieve during the initial range of motion testing (flexion from 70 to 65 degrees and extension, bilateral lateral flexion and bilateral lateral rotation from 25 to 20 degrees). Considering the foregoing, the Board finds that a rating higher than the 10 percent rating assigned for the Veteran’s lumbar spine disability is not warranted based on functional impairment at any time since September 1, 2013. 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-06. The Board has considered whether the Veteran’s service-connected lumbar spine disability manifests any associated objective neurologic abnormalities at any time during the appeal period. However, the Veteran is already separately service connected for right lower extremity radiculopathy and bowel dysfunction associated with the lumbar spine disability, erectile dysfunction has been rated with the back disability, and the record does not reflect other neurological disabilities associated with the lumbar spine disability. The Veteran is also separately rated for a scar associated with this disability. In sum, the preponderance of the evidence supports the currently assigned 40 percent rating prior to September 1, 2013, and the currently assigned 10 percent rating from that date for the lumbar spine disability. The evidence in this case is not so evenly balanced to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Van Wambeke, 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.