Citation Nr: 21028423 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-53 505A DATE: May 11, 2021 ORDER A rating of 40 percent, but no higher, for intervertebral disc syndrome of the lumbar spine (lumbar spine disability) from September 29, 2015 (excluding various periods of temporary total ratings), is granted, subject to the laws and regulations governing the award of monetary benefits. FINDING OF FACT From September 29, 2015 (excluding various periods of temporary total ratings), range of motion testing of the Veteran's thoracolumbar spine showed forward flexion functionally limited to 30 degrees or less, but no unfavorable ankylosis of the entire thoracolumbar spine. CONCLUSION OF LAW The criteria for a rating of 40 percent, but no higher, for the service-connected lumbar spine disability from September 29, 2015 (excluding various periods of temporary total rating) have been met. 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 Code (DC) 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1972 to June 1975. This matter was previously before the Board of Veterans Appeals (Board) in January 2019, when, in pertinent part, the Board denied a rating in excess of 10 percent for degenerative disc disease of the lumbar spine from September 29, 2015 to January 31, 2017, and from September 1, 2017. The Veteran appealed the Board's decision regarding the issue of higher disability ratings for his lumbar spine disability to the United States Court of Appeals for Veterans Claims (Court). In July 2019, the Court granted a Joint Motion for Partial Remand (JMPR), which vacated the portion of the Board's decision denying entitlement to higher ratings for the lumbar spine disability from September 29, 2015 to January 31, 2017, and from September 1, 2017, and remanded the issues for additional development, including obtaining a new VA examination. Subsequent to the Board's remand, the Agency of Original Jurisdiction (AOJ) redefined the Veteran's service-connected lumbar spine disability as intervertebral disc syndrome of his lumbar spine and awarded an increased evaluation for this disorder of 40 percent, effective October 14, 2020. Thus, the issues before the Board are entitlement to a rating in excess of 10 percent for the service-connected lumbar spine disability from September 29, 2015 (excluding various periods of temporary total ratings), and entitlement to a rating in excess of 40 percent for this disorder from October 14, 2020. Increased Ratings Intervertebral Disc Syndrome of the Lumbar Spine Disability ratings are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred in or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 required for that rating. Otherwise, the lower rating will be assigned. See 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. The Veteran seeks a higher disability rating for his lumbar spine disability, which is currently rated under DC 5237. Back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for IVDS based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the current Formula for Rating IVDS Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes 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 assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, DC 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS requiring treatment, including bedrest, prescribed by a physician. Id. at Note (1). The evidence of record does not show that the Veteran has been prescribed bedrest to treat incapacitating episodes of IVDS at any time during the periods on appeal, nor has he argued as such. The Board acknowledges that from February 1, 2017 to August 31, 2017 the Veteran was granted temporary total ratings due to convalescence from back surgery. However, the grant of temporary total ratings has not been appealed. Thus, the period of the Veteran's TTR is excluded from the current period on appeal and will not be discussed further in this decision. As the prescription of bedrest for IVDS is a foundational requirement of a rating under this section of the rating schedule, the absence of any prescribed bedrest precludes a rating from being assigned under it. Thus, in the case at hand, a rating based on IVDS is not appropriate and the Veteran's lumbar spine disability will be evaluated under 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 evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; when the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; when there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or when there is a vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, DC 5237. A 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when muscle spasm or guarding is 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 if forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. Id. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran contends that he is entitled to a disability rating in excess of 10 percent from September 29, 2015, excluding periods of temporary total rating, for his lumbar spine disability. In this regard, the Board notes that the September 2015 VA examination reported a diagnosis of status post lumbar spine fusion surgery L4-L5 with DDD, and reported the Veteran's range of motion of his thoracolumbar spine as follows: forward flexion to 75 degrees; extension to 25 degrees; right lateral flexion to 25 degrees; left lateral flexion to 25 degrees; right lateral rotation to 25 degrees; and left lateral rotation to 25 degrees. No additional loss was shown during repetitive testing and there was no objective evidence of painful motion. Thus, based on the results of the September 2015 VA examination, the AOJ assigned a 10 percent disability rating for the Veteran's lumbar spine DDD, effective September 29, 2015. However, in July 2019, the Court found the September 2015 VA examination to be inadequate for rating purposes. Specifically, the Court found that a new VA examination was needed to assess whether the Veteran experiences additional functional loss due to flare-ups or repetitive use over time and to assess whether the Veteran experienced pain on passive motion, or on weightbearing and non-weightbearing. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). In October 2020, the Veteran was afforded a new VA examination. He reported that his condition has progressively worsened over time and has required 3 back surgeries. He also reported constant lower back pain and numbness and tingling in his left leg. He denied experiencing flare-ups, but did report experiencing functional loss, such as the inability to stand or sit for more than 30 minutes at a time, and difficulties with bending, lifting, dressing, bathing, and getting in and out of bed. His initial range of motion was reported as: forward flexion to 20 degrees; extension to 10 degrees; right lateral flexion to 10 degrees; left lateral flexion to 10 degrees; right lateral rotation to 20 degrees; and left lateral rotation to 20 degrees. His combined range of motion for his thoracolumbar spine was 90 degrees. The examiner noted that his abnormal range of motion contributes to functional loss by causing difficulty bending to the waist level or lifting from any height. Further, pain causing functional loss was noted on examination during all range of motion activities. Objective evidence of localized tenderness or pain on palpation was noted, as well as evidence of pain with weightbearing. The Veteran was able to perform repetitive-use testing with at least 3 repetitions, and no additional loss of function or range of motion was noted. The Veteran was not examined immediately after repetitive use over time. However, the examiner noted that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. Pain, weakness, and lack of endurance was found to significantly limit functional ability with repeated use over time, but no decrease in range of motion was found. As noted above, the Veteran did not report experiencing flare-ups. He did have guarding resulting in abnormal gait, but no muscle spasm. There was no objective evidence of pain on non-weightbearing and passive range of motion was deemed not medically appropriate. His muscle strength was normal on his right side and left hip flexion, however, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension of the left side was rated as active movement against some resistance. No muscle atrophy was found, and his reflex examination was normal, with the exception of his left ankle showing as hypoactive. His sensory examination on the right side and left upper anterior thigh and knee was normal, with decreased sensation of his left lower leg/ankle and foot/toes. His straight leg raising test was negative on the right side and positive on the left. The examiner noted that the Veteran has radiculopathy affecting his left side. The Board acknowledges that, as of October 14, 2020, he has been service connected for radiculopathy of the left lower extremity (with femoral nerve involvement) at 20 percent. In addition, service connection has been established for sciatic nerve involvement of the left lower extremity at 20 percent disabling from March 15, 2011. He has not appealed the 20 percent initial rating assigned to the femoral nerve impairment of his left lower extremity and has not raised the issue of entitlement to an increased rating for his service-connected left lower radiculopathy with sciatic nerve involvement. Thus, neither of these issues are currently on appeal and will not be addressed further in this decision. There was no evidence of ankylosis of the spine or any other neurological abnormalities related to a lumbar spine disability. Despite the diagnosis of IVDS as addressed above, the Veteran has not had any episodes of acute signs and symptoms due to IVDS that required bedrest prescribed by a physician during the periods on appeal. He regularly uses a cane with ambulation. The examiner observed the Veteran's antalgic gait and a limp favoring his left leg relating to his lumbar spine disability and found that his lumbar spine disability impacted his ability to work, as he cannot perform any manual labor including bending, lifting, or carrying. There are no medical treatment records associated with the claims file that indicate that the Veteran's lumbar spine symptoms are more severe than those exhibited at the October 2020 VA examination. Based on the above, the Board finds that a rating of 40 percent, but no higher, is warranted for the Veteran's lumbar spine disability from September 29, 2015, excluding periods of temporary total ratings. The Veteran's forward flexion was reported as 20 degrees, which meets the 40 percent rating criteria. However, at no time during the appeal period has the Veteran exhibited unfavorable ankylosis of his entire thoracolumbar spine. Thus, the next higher rating of 50 percent is not warranted. (Indeed, and in this regard, the Board acknowledges that, in the March 2021 Appellant Post-Remand Brief, the Veteran, through his representative, argues that, throughout the pendency of this claim, his lumbar spine disability has more closely approximated the 40 percent rating criteria. Additionally, the Board must also consider whether an increased rating could be assigned on the basis of functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-205 (1995). Functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. The Court clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Even if range of motion was slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Id. Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. Here, the Veteran has reported that he experiences constant back pain. While he reported experiencing pain on range of motion, pain was not shown to cause additional functional loss or reduced range of motion due to flare-ups or after repetitive use over time. The Board finds the Veteran's functional loss due to pain is contemplated in the 40 percent rating. Thus, based on the objective medical evidence of record, the Board finds that the assignment of additional disability pursuant to 38 C.F.R. §§ 4.40 and 4.45 is not warranted. Thus, the weight of the probative evidence of record demonstrates that the Veteran is entitled to a disability rating throughout the appeal period of 40 percent, but no higher, for his lumbar spine disability (excluding the various periods of temporary total ratings). As such, a 40 percent rating, but no higher, is granted from September 29, 2015 (excluding the various periods of temporary total ratings) is warranted for the service-connected intervertebral disc syndrome of the lumbar spine. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Benson, 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.