Citation Nr: 21023889 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 14-00 905 DATE: April 21, 2021 ORDER Entitlement to a disability rating of 10 percent is denied for lumbar spine degenerative joint disease prior to November 17, 2016. Entitlement to a disability rating of 20 percent is granted for lumbar spine degenerative joint disease from November 17, 2016 to April 22, 2019. Entitlement to a disability rating in excess of 20 percent is denied for lumbar spine degenerative joint disease from November 17, 2016. FINDINGS OF FACT 1. For the period on appeal prior to November 17, 2016, lumbar spine degenerative joint disease did not approximate forward flexion of 60 degrees or less; or 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; and intervertebral disc syndrome (IVDS) of the thoracolumbar spine with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months or any neurological manifestations associated with the thoracolumbar spine disorder had not been demonstrated. 2. From November 17, 2016 to April 22, 2019, lumbar spine degenerative joint disease more nearly approximated forward flexion of 60 degrees or less. 3. From November 17, 2016, lumbar spine degenerative joint disease is not manifest by forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine or IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for lumbar spine degenerative joint disease have not been met or approximated at any time prior to November 17, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243. 2. The criteria for a 20 percent rating for lumbar spine degenerative joint disease have been met or approximated from November 17, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243. 3. The criteria for a rating in excess of 20 percent for lumbar spine degenerative joint disease have not been met or approximated from November 17, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1965 to September 1969. He appeals a February 2012 rating decision that granted service connection and a 10 percent rating for the lumbar spine disability. He testified before the undersigned Veterans Law Judge at a November 2016 Travel Board hearing. During the November 2016 Board hearing, the VLJ clarified the issues on appeal; clarified the concept of increased rating claims; identified potential evidentiary defects; clarified the type of evidence that would support the Veteran’s claims; enquired as to the existence of potential outstanding records; and held the record open for 90 days for the submission of additional evidence. Thus, the actions of the VLJ comply with any related duties owed during a hearing set forth in 38C.F.R. §3.103. The Board remanded the matter in July 2018, finding the examination record not entirely compliant with the provisions of 38C.F.R.§4.59 or Correia v. McDonald, 28 Vet. App. 158 (2016). In a May 2019 rating decision, the RO increased the Veteran’s lumbar spine degenerative joint disease to 20 percent effective April 22, 2019. The case was returned to the Board, but remand was again required in October 2020 because additional evidence was received after the October 2019 SSOC was issued. The matter is returned to the Board. We reject the representative’s March 2021 request for remand for yet another new examination. We find the April 2019 examination adequate and compliant with remand instructions and all controlling law; it provides all data necessary to rate the claim. As discussed in greater detail below, the VA examiner adequately explained why they did not find any additional loss of range of motion with flare-ups. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged” ratings.” Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent (“flare-ups”) due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. 1. Entitlement to a disability rating of 10 percent is denied for lumbar spine degenerative joint disease prior to November 17, 2016. 2. Entitlement to a disability rating of 20 percent is granted for lumbar spine degenerative joint disease from November 17, 2016 to April 22, 2019 3. Entitlement to a disability rating in excess of 20 percent for lumbar spine degenerative joint disease is denied from November 17, 2016. This disability has been rated under DCs 5242 for lumbar degenerative arthritis pursuant to the General Rating Formula for Diseases and Injuries of the Spine, and under DC 5243 for IVDS under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes at 38 C.F.R. § 4.71. The Veteran seeks higher ratings. The 10 percent rating prior to April 22, 2019 was assigned based on combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees/decreased range of motion with pain; the 20 percent rating has been assigned based on forward flexion limited to 60 degrees in the April 22, 2019 examination. According to the General Formula, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, 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 evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. For VA compensation purposes, fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5242 (the General Rating Formula for Diseases and Injuries of the Spine is used for conditions which result in symptoms such as pain (with or without radiation), stiffness, or aching of the area of the spine affected by residuals of injury or disease). Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242, Note (1). VA regulations define normal range of motion of the lumbar spine as flexion to 90 degrees, extension to 30 degrees, lateral flexion to 30 degrees, and rotation to 30 degrees. 38 C.F.R. § 4.71a, Plate V. IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted 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 rating is warranted for IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (2). For the following reasons, the preponderance of the evidence is against a rating in excess of 10 percent prior to November 17, 2016, supports a 20 percent rating from November 17, 2016 to April 22, 2019, and is against a rating in excess of 20 percent from November 17, 2016. Initially, the Board notes that for the entire period of the appeal, there are no associated objective neurological abnormalities for this disability that are not already rated. None of the VA examinations, dated in September 2010, October 2013 or April 2019, reflect findings of such abnormalities. Right sided decreased leg sensation related to the back disorder is service-connected. The treatment record is not inconsistent with these findings. Furthermore, all the examinations reflect there is no ankylosis. Nor is there any evidence that forward flexion is limited to 30 degrees or less. None of the examinations or treatment records, nor the testimony, suggests such a degree of limitation. At most, forward flexion is limited to 60 degrees even considering all restrictions described by the Veteran and documented or estimated by medical professionals who have examined the Veteran. Thus, a rating in excess of 20 percent is not demonstrated or more nearly approximated at any time. At his November 2016 hearing, the Veteran testified that his low back manifestations had worsened. He credibly described increased daily difficulty bending forward that can reasonably be inferred as consistent with his forward flexion restricted to 60 degrees that was documented on the April 2019 VA examination. At the April 2019 VA examination, the diagnosis was degenerative lumbar spine disease with right lumbar radiculopathy. The Veteran reported rotating and bending difficulty. He has had daily pain, treated with acupuncture and chiropractic. There is daily pain especially on waking until he gets moving. He is stiff on getting out of bed. Lifting will make it hurt more. He takes tramadol 1/2 twice a day. As to flare ups, he reported he drove about 3.5 hours recently and had a hard time getting out of the car and straightening up. 30 pounds was the maximum he could lift. Forward flexion was limited to 60 degrees and the Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion after three repetitions. The examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. Pain and lack of endurance limited his functional ability. Based on the Veteran's medical history, relevant evidence of record, the physical exam, and their own medical knowledge, the examiner did not expect a significant change in ROM related to his joint condition because they found no basis for this. The stiffness is reported to be with inactivity rather than activity. The examiner expected pain to increase significantly with flare up or prolonged use which would limit endurance. Based on the Veteran's medical history, relevant evidence of record, the physical exam, and their own medical knowledge, the examiner did not find evidence of significant decreased ROM during a flare up. The brief stiffness that the Veteran describes after sleeping or prolonged sitting, was not considered a "flare up" by the examiner. There was IVDS with no incapacitating episodes. The Veteran reported using a compression wrap occasionally, when his back bothers him more than usual. Functional work impairment was noted to be prolonged sitting and standing, walking, strenuous lifting, pushing and pulling. There was evidence of pain when the joint is used in non-weight bearing. In November 2019, the Veteran underwent physical therapy at VA for his lumbar spine. His active range of motion was noted to be limited to a severe degree. He was instructed to perform a therapeutic exercise sequence prior to getting out of bed upon waking up, progressively, and as tolerated. Based on the above, we find that a 20 percent rating is warranted for the period dating from the BVA hearing in November 2016 rather than simply from the date of examination in April 2019. Specifically, the assertions at the hearing are consistent with those at the examination. Also, his testimony about trouble bending is consistent with the measurements on the April 2019 examination. Accordingly, a 20 percent rating but no higher is found to be more nearly approximated as of the date of the hearing before the undersigned, November 17, 2016. A rating in excess of 20 percent is not warranted during that time period, as he does not demonstrate the level of reduced forward flexion, or ankylosis, or IVDS episodes required. We find his November 2019 PT treatment, focused on his morning stretch routine, consistent with the level of limitation described in the April 2019 examination. The hearing testimony established a facts found basis to assign the evaluation. In addition, the date of the hearing is a date certain (fact). The preponderance of the evidence is against a finding in excess of 10 percent prior to November 17, 2016. Here, we note that even though the VA examination reports were not wholly Correia compliant, neither the description of the limitations by the Veteran nor the treatment record supports a rating in excess of 10 percent prior to that date. We do not find that there is any record suggesting thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, 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 Veteran has not identified any evidence of this level of severity for the period prior to November 11, 2016. In October 2013 and September 2010, he denied flare ups of back symptoms and pain. There were no IVDS incapacitating episodes. There was no additional limitation of motion through three repetitions due to pain, fatigue, weakness, incoordination, or lack of endurance and no functional impact. Thus, the relevant VA rating criteria are not met as to a rating in excess of 10 percent based on ranges of motion, combined range of motion, and the absence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, or incapacitating episodes prior to November 17, 2016. The intent of the Rating Schedule is 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. When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). As required by 38 C.F.R. § 4.59, joints should be tested for pain on both active and passive motion, in weight bearing and non-weight bearing, and if possible, with the range of opposite undamaged joint. Correia v. MacDonald, 28 Vet. App. 158 (2016). See DeLuca. This was accomplished in the 2019 examination. The Veteran described his pain and it was considered by the examiner, and the functional impact described does not warrant a higher rating based on the current record; it is encompassed in the current rating. Certainly, the issue of back pain and the effect on function must be discussed, as he clearly meets no objective criteria for a rating in excess of 10 percent for this disability prior to November 17, 2016, or in excess of 20 percent from that date. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant on motion. Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance, and that weakness is as important as limitation of motion, and that a part that becomes disabled on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, for example. 38 C.F.R. § 4.40. In this case, the Board finds that the current ratings sufficiently compensate the Veteran for this disability when pain is considered. The evaluation prior to November 17, 2016 contemplates pain on motion and is consistent with flexion better than 60 degrees. There were no flare-ups prior to that time. Pain and functional limits factor into the 20 percent rating since that time, as discussed in detail by the 2019 examiner. Accordingly, the ratings assigned herein adequately represent any functional impairment attributable to the disability at all relevant times. See 38 C.F.R. §§ 4.41, 4.10. Staged ratings have been assigned as appropriate during the pendency of the claim for this disability. Hart v. Mansfield, 21 Vet. App. 505 (2007). H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. RIPPEL 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.