Citation Nr: 21028648 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 08-24 377 DATE: May 11, 2021 ORDER The February 2019 Board decision denying increased staged ratings for service-connected degenerative joint disease of the lumbar spine is vacated. An initial 40 percent disability rating for degenerative joint disease of the lumbar spine is granted for the entire appeal period. FINDINGS OF FACT 1. New evidence was introduced in the record on October 16, 2018, prior to the dispatch of a February 2019 Board decision denying increased staged ratings for the service-connected degenerative joint disease of the lumbar spine. 2. Resolving all reasonable doubt in the Veteran's favor, the probative evidence establishes that throughout the appeal period, the Veteran's degenerative joint disease has been manifested by forward flexion limited to 25 degrees during flare ups, absent his medication. CONCLUSIONS OF LAW 1. The February 2019 Board decision denying increased staged ratings for service-connected degenerative joint disease of the lumbar spine must be vacated. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. 2. The evidence is in equipoise as to whether the criteria for an initial disability rating of 40 percent for degenerative joint disease of the lumbar spine have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5242 and 5243. INTRODUCTION The Veteran served on active duty in the United States Army from August 1993 to March 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which granted service connection for degenerative joint disease of the lumbar spine and assigned a 10 percent disability evaluation. By way of procedural history, the Veteran disagreed with the assigned 10 percent evaluation and timely appealed. During the appeal period, the RO partially granted the Veteran's claim for an increased evaluation for degenerative joint disease of the lumbar spine; a 20 percent rating was assigned effective May 6, 2009 and a 40 percent rating was assigned effective May 24, 2018. As discussed below, the appeal for increased staged ratings was most recently before the Board in February 2019. ORDER TO VACATE The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, where an appellant has been denied due process of law. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904(a). On February 14, 2019, the Board issued a decision denying increased staged ratings for degenerative joint disease of the lumbar spine. On October 16, 2018, before that decision was dispatched, the Board received additional medical evidence in support of the Veteran's claims. The evidence includes a private medical opinion and a legal brief. In order to afford the Veteran due process, the Board hereby vacates the February 2019 decision as it pertains to the issues of entitlement to increased staged ratings for degenerative joint disease of the lumbar spine and shall consider this new evidence in the ensuing analysis. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38C.F.R. §4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38C.F.R. §4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38C.F.R. §4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28Vet. App.158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38C.F.R. §4.40 and §4.45 must be considered. DeLuca v. Brown, 8Vet. App.202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10Vet. App.80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by §4.40 and §4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25Vet. App.32, 43 (2011). The Court in Sharp v. Shulkin addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. 29Vet. App.26 (2017). Additionally, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. During the appeal period, the Veteran's lumbar spine disability has been rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5242 and 5243. Disabilities of the spine are evaluated under the General Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71(a), Diagnostic Codes 5235-5242. The General Rating Formula provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range-of-motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 provided for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range-of-motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 30 percent disability rating is provided for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is provided for unfavorable ankylosis of the entire cervical spine; or, 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 the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2) (See also Plate V) provides that, for VA compensation purposes, normal forward flexion of the lumbar 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 combined range-of-motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range-of-motion of the lumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range-of-motion. Note (3) provides that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range-of-motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range-of-motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range-of-motion is normal for that individual will be accepted. Note (4) instructs to round each range-of-motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire lumbar 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. Under the IVDS Rating Formula (Diagnostic Code 5243), a 10 percent disability rating is assigned with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent disability rating is assigned 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 disability rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent disability rating is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides that 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. Note (2) provides that 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 should be evaluated 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. The Board observes that VA recently revised Diagnostic Code 5242 to encompass "Degenerative arthritis, degenerative disc disease other than IVDS" while revising Diagnostic Code 5243 as IVDS only when there is disc herniation with compression and/or irritation of the adjacent nerve root. 85 Fed. Reg. 76453 (Nov. 30, 2020). VA considers these non-substantive changes which clarify the meaning of IVDS. See 82 Fed. Reg. 35719, 35720 (Aug. 1, 2017). As such, the Board finds that this non-substantive change does not require AOJ review in the first instance. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Factual Background Turning to the facts of the case, the Veteran filed for service connection for a low back disability in July 2006. As a preliminary matter, the Board recognizes that during the appeal period, the Veteran was in receipt of a temporary total rating due to his spinal disability from March 6, 2013 to April 30, 2013. Accordingly, the ensuing analysis will focus on the time periods when the Veteran's disability was rated less than 100 percent. At the October 2006 VA examination, the Veteran reported constant dull discomfort in the lumbar spine region. He denied flare ups of back pain but stated that his back pain increased if he stood in one position for more than a couple of hours. The Veteran stated that his activities were primarily restricted because of other orthopedic disabilities and less so because of his low back pain. Examination of the lumbar spine revealed mild scoliosis of the lower thoracic and upper lumbar spine. There was a decrease in the normal lumbar lordosis, but there was no objective evidence of painful motion, spasm, weakness, or tenderness. Range of motion revealed forward flexion to 90 degrees and extension to 30 degrees; bilateral lateral flexion and bilateral lateral rotation were 30 degrees each. While the Veteran endorsed a slight limp, the strength in his lower extremities was normal bilaterally. The clinician ultimately diagnosed degenerative joint disease of the lumbar spine. In February and March 2007, the Veteran reported that his chronic back pain made it difficult for him to pick up his infant child. It also prevented him from tying his shoes and getting dressed sometimes. His treatment included over-the-counter medications, muscle relaxers, and he received injections to alleviate his back pain. There was evidence of tenderness to palpation and muscles spasms. Upon range of motion testing, the Veteran endorsed marked pain in his back. He also described having worse pain when sitting or bending. In November 2007, the Veteran reported chronic back pain. He stated that his over-the-counter medication was not providing enough relief, while his prescription medication, to include muscle relaxers, did "help some." He also indicated that the injections he received helped significantly for about two days. In February 2008, the Veteran reported that his most recent medications were no longer effective in alleviating his pain. He stated that he was often unable to sleep at night due to his chronic pain. The Veteran's treating physician refilled his muscle relaxers and prescribed Percocet to assist with pain. In June 2008, the Veteran indicated that his pain was so severe, he was unable to bend over, pick up anything, dress himself, or pick his kids up. In July 2008, the Veteran noted worsening back pain over the last six weeks. He described the pain as sharp, aching, and constant in nature. Upon examination, the Veteran endorsed limitation of flexion and extension, as well as lateral rotation of the lower spine. His muscle strength was normal, and his sensory examination was normal. In an August 2008 neurology note, an MRI of the spine revealed a small disc at L5-SI. The physician also noted that the Veteran's gait was normal, although he tended to guard his back. In November 2008, the Veteran reported experiencing more frequent flares ups of pain. He reported that he was unable to tie his shoes due to his pain. In a May 2009 treatment note, the Veteran reported chronic lower back pain. He received a series of three injections to help with pain. He reported that the series of injections were effective, with each injection improved pain and lasted longer. Upon examination, the clinician noted mild tenderness to palpate in lower back towards the right paraspinal region. The clinician also noted muscle spasms. At the May 2009 VA examination, the Veteran reports a progressive worsening of his back condition. He indicated that he received spinal epidurals and used pain medication and muscle relaxers to alleviate his back pain. He indicated that the pain was so severe, it prevented him from bending over the put on his shoes or pick up his children. He described having flare ups of severe pain on a weekly basis. The flare ups lasted up to seven days. However, the examiner noted he was able to walk up to three miles and there were no incapacitating episodes attributable to the lumbar spine disability. The examiner noted that the Veteran's gait was antalgic, as the Veteran walked with a limp. Range of motion testing revealed forward flexion to 56 degrees and extension to 10 degrees; total range of motion was 129 degrees. The examiner also noted that there was additional limitation after three repetitions of range of motion. Specifically, after repetitive use, forward flexion of the spine was limited to 54 degrees while extension was limited to 8 degrees; total range of motion after repetitive use testing was limited to 131 degrees. In addition, there was evidence of muscle spasms, pain with motion, and tenderness in the spine. The Veteran endorsed decreased muscle strength in the bilateral lower extremities but had normal sensation to vibration, pain, light touch and position sense. His lumbar spine disability had severe effect and even prevented most usual daily activities. At the April 2010 VA examination, the Veteran complained of constant low back pain, rated 6/10 at baseline. His pain relief treatment included various prescriptions and epidural steroid injections. He stated that his pain flared up to 8/10 during various activities, such as siting for over an hour. The flare ups occurred a couple times per week and lasted from two to eight hours. He used a lumbosacral corset brace a couple times per month when he lifted. Range of motion revealed active forward flexion to 50 degrees. The examiner noted that the Veteran did not further flex, but his active range of motion appeared to be better. Passive forward flexion was noted at 90 degrees, but the examiner stated that it appeared that the Veteran could further flex. Extension was to 35 degrees; bilateral lateral bending and lateral rotation were each measured at 35 degrees. The examiner noted that during a flare up or following repetitive motion, the Veteran would be additionally limited by pain; however, the examiner did not provide an estimate as to the Veteran's range of motion following repetitive use. There was no objective of functional loss but there was weakness and tenderness to palpation. The Veteran had no incapacitating episodes as defined by VA regulation. At the December 2011 VA examination, the Veteran indicated that his pain continued to negatively impact his daily living; he was unable to sleep and had difficulty getting out of bed. Range of motion revealed forward flexion to 45 degrees and extension to 20 degrees. The examiner noted that some of the Veteran's range of motion repetitions improved, which was inconsistent and called into question the Veteran's effort on testing. The examiner found that there was no additional limitation in range of motion following repetitive use testing. There was no evidence of tenderness or pain to palpation, nor was there any evidence of guarding or muscle spasm of the spine. At the November 2014 VA examination, the Veteran reported having decreased ability to perform activities involving bending and twisting. He stated that any increase in physical activity caused a flare up of his discomfort. Range of motion testing revealed forward flexion to 55 degrees and extension to 25 degrees; total range of motion was 200 degrees. There was no evidence of pain with weight bearing, but there was objective evidence of generalized tenderness with palpation of the LS spine. The Veteran was able to perform repetitive use testing with at least three repetitions without additional loss of function or range of motion. While there was evidence of localized tenderness and guarding, neither symptom resulted in abnormal gait or abnormal spinal contour. While there was a diagnosis of intervertebral disc syndrome, there were no incapacitating episodes as defined by VA regulation. In July 2017, the Veteran reported to the emergency room with exacerbated low back pain. He denied any specific injury, but stated that his normal activities of daily living, such as walking and standing, caused intermittent severe flares of pain. In March 2018, the Veteran reported low back pain; upon examination, the physician noted bilateral mild muscle spasms. In a May 2018 private physical therapy note, the Veteran reported that his back pain moderately impaired his work activities and activities of daily living. Range of motion testing revealed forward flexion to 30 degrees, extension to 10 degrees, and total range of motion of 80 degrees. The Veteran was noted to have abnormal gait and guarding with transfers. His back pain limited his tolerance for climbing steps, squatting standing, and walking. At the September 2018 VA examination, the Veteran reported daily flare ups of back pain that affected his ability to bend and twist. Range of motion testing revealed forward flexion to 25 degrees and extension to 15 degrees. Total range of motion was 120 degrees. The Veteran was able to perform repetitive use testing with at least three repetitions without additional loss of function or range of motion. The examiner noted that pain, fatigue, weakness, and lack of endurance significantly limited functional ability with flare ups. The Veteran also endorsed guarding and muscle spasms in the spine, but they did not result in abnormal gait or spinal contour. In October 2018, the Veteran underwent a private physical examination to assess the severity of his lumbar spine disability. Upon review of the record, the advanced registered nurse practitioner (ARNP) opined that it was at least as likely as not that the Veteran's forward flexion of the spine, absent the effects of medication, has been limited to 25 degrees or less during a flare up or after repetitive usage since July 2006. In so finding, the ARNP noted that the Veteran's treatment included taking various prescribed narcotics to counteract the severe pain he experienced during flare ups, which he experienced at least weekly for several days at a time. During flare ups, the Veteran was unable to bend, could not reach his shoes, and was unable to ambulate from the bed. The ARNP found that absent the effects of medication, the Veteran's functional range of motion was limited to no more than 25 degrees forward flexion during a flare up. Analysis Upon review of the evidence, and resolving all reasonable doubt in the Veteran's favor, the Board finds that an initial rating of 40 percent is warranted for service-connected degenerative joint disease of the lumbar spine. On this record, since the inception of the appeal period, the Veteran's lumbar spine disability has been manifested by pain, stiffness, and limitation of motion. He has consistently used prescription medications, to include narcotics and muscle relaxers, along with steroid injections to alleviate his pain. However, he continued to experience muscle spams and limitation in functionality of the spine. Notably, since the early stage of the appeal period, the Veteran was unable to bend over to tie his shoes and lumbar spine limited his ability to dress himself. The Board acknowledges that the limitation of flexion of the Veteran's lumbar spine ranged in various degrees during the appeal period, as noted in the numerous VA examinations. However, the Board notes that the VA examiners did not discuss the potential ameliorative effects of the Veteran's daily medications and treatments. However, the October 2018 medical evaluation and opinion from the ARNP specifically stated that it is at least as likely as not that during a flare-up, absent the effects of medication, the Veteran functional range of motion in any plane for the spine is limited to 25 degrees. The Board finds the ARNP's estimate regarding the ROM of the back absent his medication use, most probative. His opinion is the only medical opinion of record with an estimate, minus the Veteran's noted medication use. Significantly, there no medical or lay evidence to contradict his findings. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). As a result, the Board finds that the evidence is in relative equipoise and an initial rating of 40 percent is warranted. In so finding, the Veteran's symptoms of his lower back disability do not paint a disability picture that is more closely approximated by the 50 percent criteria. At no time during the appeal period, has the VA examiner nor private clinician found him to have ankylosis, and the medical and lay evidence of record shows that he has movement, albeit limited, of his spine. Further, to the extent that the VA examinations of record failed to comply with the holdings in Correia or Sharp, either individually or collectively, any such non-compliance is harmless error. See Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016); Sharp v. Shulkin, 29 Vet. App. 26, 33-35 (2017). In this respect, the Court in Johnston v. Brown, indicates that where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, the cited regulations are not for application. 10 Vet. App. at 84-85 (although the Secretary suggested remand because of the Board's failure to consider functional loss due to pain, remand was not appropriate because higher schedular rating required ankylosis). Thus, because the Veteran is in receipt of the maximum schedular rating based on limitation of motion and a higher rating requires ankylosis or other symptoms unrelated to limitation of motion, 38 C.F.R. §§ 4.40 and 4.45 are not for application. As for whether the Veteran is entitled to the higher 60 percent rating, which requires incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5243, neither the objective medical evidence nor the subjective lay evidence establish that the Veteran's IVDS results in incapacitating episodes as defined by VA regulation. While the Veteran did experience severe pain and stiffness of the spine, there is no evidence that he was prescribed bedrest by a physician. Thus, he is not entitled to the higher 60 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. There is no additional medical evidence, as discussed in detail above, which would support the Veteran's contentions that his lumbar spine disability has increased in severity beyond the currently assigned 40 percent rating, either collectively or individually. In reaching the above conclusions, the Board has not overlooked the Veteran's statements with regard to the severity of his low back disability. In this regard, the Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing chronic pain in his back. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The record consists of the Veteran's lay statements, both written and verbalized to his treating physicians and examiners, throughout the course of the appeal describing the severity of his symptoms. He is competent to provide such statements, and the Board finds that the Veteran's statements are credible. However, even when considering the Veteran's statements, the Board finds that the currently assigned 40 percent rating adequately encompasses the severity of the Veteran's symptoms. The lay statements do not describe or establish that the severity of the Veteran's disability more nearly approximates that which is contemplated by the higher 50 percent or 60 percent ratings. Thus, the Board finds that the Veteran's low back disability is not more closely approximated by the 50 percent disability rating, even when considering the functional loss as outlined in 38 C.F.R. §§ 4.40 and 4.45. Accordingly, the preponderance of the evidence supports a disability rating of 40 percent during the appeal period, and as such is granted herein. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Orie, 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.