Citation Nr: 21029304 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-43 769 DATE: May 13, 2021 ORDER A 40 percent rating, but no higher, for degenerative disc disease (DDD) with spondylosis of the lumbar spine from June 27, 2013 to March 12, 2018 is granted. REMANDED The issue of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT From June 27, 2013 to March 12, 2018, the Veteran's DDD with spondylosis of lumbar spine was characterized by forward flexion limited to 30 degrees. CONCLUSION OF LAW The criteria for A 40 percent rating, but no higher, for DDD with spondylosis of the lumbar spine from June 27, 2013 to March 12, 2018 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1955 to March 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2018, a hearing was held before a Veterans Law Judge (VLJ). A transcript of the hearing is in the record. In March 2021, the Veteran was informed that the VLJ who held the hearing was no longer available to participate in the appeal. He was advised to submit a request for another hearing within 30 days if he wished to have one, and no such request was received. Therefore, the Board will proceed with his appeal. In the September 2019 decision, the Board denied an increased rating for DDD with spondylosis of the lumbar spine from June 27, 2013 to March 12, 2018. The Veteran appealed the claim to the United States Court of Appeals for Veterans Claims (Court). In an October 2020 Joint Motion for Remand (JMR), the parties requested that the Court vacate and remand the September 2019 Board decision. The Court specifically noted the examinations the Board relied on in its September 2019 decision were inadequate as they did not comply with Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). The Court also noted the Board did not discuss evidence of the Veteran's manifestations of functional loss which could warrant a higher rating under 38 C.F.R. § 4.40 and 4.45. In this decision, the Board will address the errors raised by the Court and decide the claim in the Veteran's favor based on the evidence of record so as not to delay a favorable outcome to this Veteran of advanced age. Increased Rating for DDD with spondylosis of the lumbar spine from June 27, 2013 to March 12, 2018. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will consider entitlement to "staged" ratings to compensate for times since filing the claim (or even during the year prior) when the disability may have been more severe than at other times during the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). "Pyramiding," that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes through the senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. As previously stated, the Court issued an October 2020 JMR vacating the Board's decision with respect to the claim on appeal. Therefore, the Board will address whether the Veteran was entitled to a rating more than 20 percent from June 27, 2013 to March 12, 2018 as instructed by the Court. The Veteran's DDD with spondylosis of the lumbar spine is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. 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. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Unfavorable ankylosis is defined as "a condition in which the entire cervical spine, 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." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. [Include any other relevant Note(s).] 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). Turning to the evidence of record, at the December 2013 back VA examination, it was noted that the Veteran reported flare-ups with increased pain that occurred once a week lasting 2 to 3 days causing the Veteran to stop virtually all activity. On initial range of motion testing, forward flexion was limited to 85 degrees, with objective evidence of painful motion beginning at 70 degrees. Extension was limited to 15 degrees, with no objective evidence of painful motion. Right lateral flexion was limited to 15 degrees, with no objective evidence of painful motion. Left lateral flexion was limited to 15 degrees, with no objective evidence of painful motion. Right lateral rotation was limited to 20 degrees, with no objective evidence of painful motion. Left lateral rotation was limited to 10 degrees, with objective evidence of painful motion beginning at 5 degrees. On repetitive-use testing, range of motion measurements were noted as follows: forward flexion was limited to 80 degrees; extension was limited to 10 degrees; right lateral flexion was limited to 10 degrees; left lateral flexion was limited to 10 degrees; right lateral rotation was limited to 10 degrees; and left lateral rotation was limited to 5 degrees. The examiner noted there was additional limitation in range of motion and functional loss on repetitive-use testing described as less movement than normal and pain on movement. The examiner also observed that the Veteran lost 5 degrees of range of motion with repeated testing. Pain was noted over the lumbar spine from T12 to S1. There was no guarding or muscle spasm of the lumbar spine. Muscle strength was normal in the bilateral hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion and great toe extension. There was no muscle atrophy. Deep tendon reflexes were hypoactive in the bilateral knee and ankle due to Parkinson's disease. Sensation to light touch was normal in the bilateral upper anterior thigh (L2), thigh/knee (L3/4), and lower leg/ankle (L4/L5/S1), and absent in the right foot/toes and decreased in the left foot/toes (L5). Straight leg raising test was negative in the right and left leg. The Veteran did not have radicular pain or any other signs due to radiculopathy. There were no neurologic abnormalities or intervertebral disc syndrome (IVDS). The Veteran required the regular use of a walker and scooter. There were no scars associated with the lumbar spine. Diagnostic testing revealed arthritis. The examiner noted the Veteran's lumbar spine disability impacted his ability to work as the Veteran could only lift 8 pounds up to 10 times, walk 1/4 of a mile, sit or stand for 30 minutes during a workday. A March 2014 examination conducted by the Veteran's private physician noted the lumbar spine exhibited tenderness on palpation, and muscle spasms of the paraspinal muscles. Range of motion was noted as follows: forward flexion was limited to 40 degrees and extension was limited to 50 degrees. Straight-leg raising test was positive. Gait and stance and ankle jerk were abnormal. There was no clonus of the ankle or knee and Hoffman's sign was not demonstrated. VA treatment records and statements from the Veteran indicate reported symptoms of constant low back pain and tenderness; use of a walker and scooter; and increasing pain with routine daily activities of standing, sitting, and walking. Given these facts, a 40 percent rating for DDD with spondylosis of the lumbar spine from June 27, 2013 through March 12, 2018, most closely approximate the Veteran's limitation of motion and functional impairment during the period on appeal. The December 2013 VA examination is inadequate to the extent that the examiner did not estimate the Veteran's additional loss of range of motion due to the Veteran's reported flare-ups. However, the Veteran's reports of the severity of his pain during flare-ups and the March 2014 private examination noting the Veteran's flexion was limited to 40 degrees, indicates that his pain significantly limited his functional ability and range of motion during the appeal period and is probative. A 50 percent rating is not warranted for the Veteran's thoracolumbar spine degenerative joint disease because the Veteran did not have ankylosis. Furthermore, a 60 percent rating for IVDS based on incapacitating episodes is not warranted because the Veteran did not have a diagnosis of IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Also, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. Accordingly, a 40 percent rating, but no higher, is granted. REASONS FOR REMAND The issue of entitlement to a TDIU is remanded. The matter is REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: The record contains VA back examinations and the Veteran's statements that his service-connected back disability impacts his ability to work. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Board has granted an increased rating for the Veteran's lumbar spine disability. Thus, remand is required to implement the Board's decision and adjudicate the Veteran's TDIU claim. 2. After the above development, readjudicate the issue on appeal. If the benefit sought on appeal is denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). An appropriate period should be allowed for response before the case is returned to the Board. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McDuffie, 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.