Citation Nr: 21024522 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 11-21 805 DATE: April 23, 2021 ORDER From December 11, 2009 to January 6, 2010, entitlement to a 20 percent rating, but no higher, a lumbar spine disability is granted. From January 7, 2010 to September 12, 2013, entitlement to a rating in excess of 20 percent, for a lumbar spine disability is denied. From September 13, 2013 to February 25, 2016, entitlement to a rating of 40 percent, but no higher for a lumbar spine disability is granted. From February 26, 2016, entitlement to a rating in excess of 40 percent, for a lumbar spine disability is denied Entitlement to temporary total disability ratings for convalescence following December 2009 medical procedures and following a September 2013 surgery are denied. FINDINGS OF FACT 1. From December 11, 2009 to September 12, 2013, the Veteran’s lumbar spine disability was manifested by forward flexion of the thoracolumbar spine, greater than 30 degrees but not greater than 60 degrees; there is no evidence of ankylosis; and, there is no diagnosis of IVDS. 2. From September 13, 2013, the Veteran’s lumbar spine disability has been manifested by forward flexion of the thoracolumbar spine limited to 30 degrees or less; there is no evidence of ankylosis; and, there is no diagnosis of IVDS. 3. Following December 2009 low back medical procedures, the Veteran did not require at least one month of convalescence; he did not have severe postoperative residuals such as incompletely healed surgical wounds, therapeutic immobilization of a major joint, the necessity for house confinement, or the prohibition of regular weight-bearing; and he did not require immobilization of any joint. 4. Following a September 2013 back surgery, the Veteran did not require at least one month of convalescence; he did not have severe postoperative residuals such as incompletely healed surgical wounds, therapeutic immobilization of a major joint, the necessity for house confinement, or the prohibition of regular weight-bearing; and, he did not require immobilization of any joint. CONCLUSIONS OF LAW 1. From December 11, 2009 to September 12, 2013, the criteria for a rating of 20 percent, but no higher, for a lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5237. 2. From September 13, 2013, the criteria for a rating of 40 percent, but no higher, for a lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5237. 3. The criteria have not been met for a temporary total disability rating for convalescence following December 2009 medical procedures. 38 U.S.C. §§ 1155; 38 C.F.R. § 4.30. 4. The criteria have not been met for a temporary total disability rating for convalescence following a September 2013 back surgery. 38 U.S.C. §§ 1155; 38 C.F.R. § 4.30. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from November 1996 to May 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from July 2010 and June 2016 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a Board hearing before the undersigned in July 2015. The claims were previously remanded by the Board’s decisions of September 2015, August 2017, and July 2019. A June 2016, rating decision established service connection for right and left lower extremity radiculopathy and for a surgical scar. The Veteran did not appeal this rating decision. No claims related to lower extremity radiculopathy or a scar are currently before the Board. In December 2020, the Veteran opted to remove the issue of entitlement to a total disability rating based on individual unemployability (TDIU) from the legacy appeal system and to have the issue adjudicated under the modernized appeal framework implemented under the Appeals Modernization Act (AMA). In March 2021, an AMA Decision Review Officer Decision allowed entitlement to TDIU. TDIU is no longer included in the legacy appeal now before the Board. 1. Entitlement to an increased rating for a lumbar spine disability, identified as myofascial lumbar syndrome secondary to an incompetent L4-5 disc, rated as 10 percent disabling prior to January 7, 2010, as 20 percent disabling from January 7, 2010 to February 26, 2016, and as 40 percent thereafter 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. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107(b). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. Wood v. Derwinski, 1 Vet. App. 190 (1991); Washington v. Nicholson, 19 Vet. App. 362 (2005). Where, as in the present case, entitlement to compensation has already been established and increase in the disability rating is at issue, the present level of disability is of primary concern; therefore, the most critical evidence consists of the evidence generated during the appeal period. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a “staged rating” (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Veteran’s lumbar spine disability, identified as myofascial lumbar syndrome secondary to an incompetent L4-5 disc, is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242-5237. Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The present lumbar spine disability is rated on the basis of limitation of motion using the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted 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 rating is warranted 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 rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating 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, General Rating Formula for Diseases and Injuries of the Spine. In January 2010, the Veteran filed a claim seeing an increased rating for his lumbar spine disability. At that time, this disability was rated 10 percent disabling. On December 11, 2009, within one year of filing his claim, the Veteran received an epidural injection and underwent a disc sealant procedure. In April 2010, a VA thoracolumbar spine examination was provided. The Veteran reported constant back pain and stiffness. The examiner described the pain and stiffness as “mild.” The Veteran reported flares of increased pain with sitting and lifting. Flares were alleviated by decreased activity. On initial range of motion testing, forward flexion to 60 degrees was observed. Pain and painful motion were noted on examination. There was no indication of where, over the range of motion, pain was onset. The examination did not include any evaluation of the Veteran’s range of motion after repetitive use over time or during flares. In July 2010, the Veteran submitted a statement explaining that he was able to bend in flexion to 60 degrees, but this movement was painful. He did not indicate at what point his movement became painful. August 2010, December 2010, and July 2011 treatment records from Dr. K. P., a private physician, indicate the Veteran experienced pain with lumbar flexion. The physician’s notes do not indicate the point at which movement became painful. In February 2013, the Veteran was treated by Dr. S. B., a private physician, for severe low back pain. On September 13, 2013, Dr. S. B. observed lumbar forward flexion to 15 degrees. Dr. S. B. performed a lumbar fusion surgery in September 2013. In October 2013, Dr. S. B. observed the Veteran’s condition had improved following the surgery. In February 2014, the Veteran reported stiffness and reduced range of motion following the lumbar fusion. Dr. S. B. described continuing improvement. In June 2014, Dr. K. P.’s notes document pain in lumbar fusion at 10 degrees. In July 1, 2014 and September 2014, Dr. S. B. measured the Veteran’s forward flexion to 15 degrees. In April 2015 and June 2015, Dr. K. P. observed pain with lumbar flexion at 10 degrees. In July 2015, the Veteran testified that his condition had worsened since the April 2010 examination. He testified that he stopped working as a community bank president in September 2013 because of his back disability. He explained that he was unable to sit, walk, or stand for long periods of time. His ability to climb stairs was limited. He was unable to golf, coach baseball, or mow the lawn. He used narcotic painkillers. A second VA back conditions examination was provided in March 2016. The Veteran reported continuing lower back pain. During flares, his pain increased, and he needed to stop his activities and lie down flat. Coughing and sneezing increased his pain. He was unsteady due to pain. He did not use any braces or assistive devices. He could not stoop or bend. His ability to walk, stand, and sit were limited. His symptoms flared with activity. On initial range of motion testing, flexion was limited to 20 degrees. Pain was noted during the examination, but the examiner indicated there was no pain with weight bearing. The examiner observed the Veteran was able to sit in a chair with his back flexed to 90 degrees, although he appeared to be in “mild discomfort.” The examiner did not provide any evaluation of the Veteran’s range of motion following repetitive use over time or during flares. No ankylosis was noted. IVDS was not diagnosed. A third VA back conditions examination was provided in September 2017. The Veteran reported continuing back pain which flared with prolonged sitting or standing. He used a cane constantly to assist with locomotion. On initial range of motion testing, forward flexion was limited to 40 degrees. The examiner noted pain on movement, but the point where pain was onset was not indicated. There was no ankylosis and no diagnosis of intervertebral disc syndrome (IVDS). The examiner did not provide any estimate of the Veteran’s range of motion following repetitive use over time or during a flare up. A fourth VA back conditions examination was provided in November 2019. The Veteran reported persistent dull aching back pain and sharp stabbing back pain. He also described decreased range of motion, stiffness, fatigue, tenderness, catching and locking, limited mobility, lack of endurance and incoordination. His ability to bend, stoop, push, pull, carry, haul, lift, stand, sit, walk, climb, and run were limited. He continued constant use of a cane. He reported flare ups where he was unable to get out of bed or walk until his medications took effect. On initial evaluation, range of motion in flexion was limited to 20 degrees. Pain was noted in all ranges of motion of the lumbar spine. With repetitive use over time and during flares, the examiner estimated the Veteran’s range of motion in flexion would be limited to 10 degrees. No ankylosis was noted. IVDS was not diagnosed. The examiner observed pain with weight bearing and no pain when the spine was in a non-weight bearing position at rest. She noted it was not safe to perform passive range of motion testing. This examination also provided the evaluations required under Sharp. A fifth VA back conditions examination was provided in October 2020. The Veteran continued to report constant dull aching pain and sharp stabbing pain. He described decreased range of motion, stiffness, fatigue, weakness, and lack of endurance. He used a cane constantly. He was limited in his ability to bend, stoop, push, pull, carry, haul, run, lift, stand, sit, walk, climb, squat, walk, stand, and drive. He did not report any flare ups. On initial range of motion testing, the Veteran was limited to 15 degrees of forward flexion. The examiner estimated that with repetitive use over time his forward flexion would be limited to10 degrees. As the Veteran did not report flares, she did not provide any estimate for additional limitations during a flare. Ankylosis was not observed. The examiner observed pain with weightbearing and with non-weight bearing motion. Passive range of motion was not tested because it was not safe to do so. This examination also provided the evaluations required under Correia and Sharp. Over the entire appeal period, the Veteran experienced painful motion in his lumbar spine. On examination in April 2010, the Veteran’s thoracolumbar forward flexion was limited, by pain, to less than 60 degrees. However, there is no evidence his range of motion was reduced, including by painful motion, to 30 degrees or less. December 11, 2009 treatment records indicate worsening within in one year prior to the date he filed his claim. Accordingly, a rating of 20 percent, but no higher, is warranted from December 11, 2009. Resolving reasonable doubt in favor of the Veteran, from September 13, 2013, forward flexion was limited to less than 30 degrees. Accordingly, from September 13, 2013, a rating of 40 percent is warranted. Over the entire appeal period, there is no evidence of ankylosis. In addition, the Board finds the Veteran has reported flares where his activities are limited by pain, including periods where he must lie down or remain in bed. He also reported symptoms of catching and locking in November 2019. However, there is no evidence the Veteran has experienced periods which approximated complete immobility in his back. The functional equivalent of ankylosis is not demonstrated. Finally, there is no diagnosis of IVDS. A rating in excess of 40 percent is not indicated at any time. 38 C.F.R. § 4.71a. 2. Entitlement to a temporary total disability rating for convalescence following December 2009 medical procedures and/or a September 2013 surgery Pursuant to 38 C.F.R. § 4.30, a total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted. The award will be effective from the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following the hospital discharge or outpatient release. In order to attain the temporary total evaluation, the Veteran must demonstrate that his service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals, such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, the application of a body cast, a necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30(a). The Court of Appeals for Veterans Claims has determined that a claimant’s incapacity to work after surgery must be taken into account with respect to showing a need for continuing convalescence under 38 C.F.R. § 4.30. See Felden v. West, 11 Vet. App. 427, 430 (1998); Seals v. Brown, 8 Vet. App. 291 (1995). The Court has defined convalescence as “the stage of recovery following an attack of disease, a surgical operation, or an injury.” Felden, 11 Vet. App. at 430 (citing Dorland’s Illustrated Medical Dictionary). The Court also defined recovery as “the act of regaining or returning toward a normal or healthy state.” Id. (citing Webster’s Medical Desk Dictionary 606 (1986)). The relevant inquiry is not the amount of time to recover at home, but whether a report, rendered near the time of a hospital discharge or an outpatient release, indicates a surgical procedure was performed that would require at least one month for the claimant to return to a healthy state. Id. Subsequent medical evidence can establish if one or more months of convalescence is needed to recover. Id. December 2009 medical procedures In January 2010, the Veteran’s claim included his request for a temporary total disability rating following a December 2009 “corrective procedure for sealant of the L4/L5 and L5/S1 of his spine.” He submitted Texas Spine and Joint Hospital procedure notes documenting Dr. K. P. performed a lumbar interlaminar epidural injection and a biological disc sealant procedure on December 11, 2009. The medical records confirm the disc sealant and epidural injections were completed without complications. The epidural injection note documents the Veteran received discharge instructions to report adverse signs or symptoms and to avoid operating machinery or driving for 24 hours. In March 2010, the Veteran stated that returned to work, as a banker, 16 days after the procedures. His doctor approved his return with a restriction on lifting. There is no evidence the Veteran required additional treatment or medical intervention following the December 11, 2009 procedures. In July 2010, the Veteran stated he chose to have the biological sealant procedure over having a spinal fusion surgery because it was less invasive. In a July 2011 letter, Dr. K. P. explained that the biological disc sealant procedure was done to “prevent spinal fusion [surgery] which is an invasive major surgical procedure implanting titanium rods and screws to prevent motion of [the] spine.” There is no evidence the Veteran’s spine was immobilized, by a cast or otherwise, following the procedures. Accordingly, the medical evidence does not show the Veteran underwent a surgery, required one or more months of convalescence, experienced postoperative complications, or required immobilization of his spine. A temporary total disability rating is not warranted following the December 2009 medical procedures, including receipt of a disc sealant. 38 C.F.R. § 4.30(a). September 2013 lumbar fusion surgery Medical records associated with the claims file document the Veteran underwent a lumbar fusion surgery on September 16, 2013. He was discharged from the hospital on September 20, 2013. The discharge summary notes the Veteran experienced back pain and muscle spasms and received pain management treatment while he was in the hospital. On discharge, he felt better and was ambulating well. His condition was described as stable. He was instructed to continue activity per physical therapy instructions and to follow up with his surgeon in one month. At an October 11, 2013 post-operative office visit, the Veteran was “much better than he was preoperatively,” and his surgeon allowed him to increase his activities as tolerated. Accordingly, the medical records show that the Veteran’s condition improved and he was allowed to resume activities less than one month after surgery. There is no evidence of any post-operative complications or the use of a cast or other spine immobilization. A temporary total disability rating is not warranted following the September 2013 surgery. 38 C.F.R. § 4.30(a). M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeanne Celtnieks 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.