Citation Nr: 21029860 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-15 462A DATE: May 17, 2021 ORDER Entitlement to a rating in excess of 40 percent for a low back disability from January 9, 2020, is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for a low back disability prior to May 3, 2017, is remanded. Entitlement to a rating in excess of 20 percent for a low back disability from May 3, 2017 to January 8, 2020, is remanded. FINDING OF FACT The Veteran does not have unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine, as evaluated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5243. CONCLUSION OF LAW The criteria for entitlement to an evaluation in excess of 40 percent for service-connected degenerative disc disease of the lumbar spine, from January 9, 2020, have not been met. 38 U.S.C. §§ 1110, 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.400, 4.1-4.14, 4.40-4.45, 4.59, 4.71a, DC 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Army from December 1965 to October 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This case was before the Board in September 2018 where it denied the Veteran's claim of entitlement to an evaluation for a low back disability greater than 10 percent prior to May 3, 2017 and greater than 20 percent thereafter. The Veteran appealed the September 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). In August 2019, the Court granted a Joint Motion for Partial Remand (JMPR) of the Veteran and the Secretary of Veterans Affairs (the Parties). The case was remanded in December 2019 for additional development. Increased Rating Disability evaluations (ratings) 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 the 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. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505. The Veteran's lumbar spine disability is rated under the General Rating Formula for Diseases and Injuries of the Spine, which provide the criteria for rating spinal disabilities with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 60 degrees, but not greater than 85 degrees; or where the combined range of motion of the thoracolumbar spine is greater than 120 degrees, but not greater than 235 degrees; or where there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or where there is vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, General Rating Formula. A 20 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; or where the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or where 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. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less, or, for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Any associated objective neurologic abnormalities including, but not limited to bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. Id. at Note (1). 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."). Back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating IVDS based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, DCs 5235-5243. Under the Formula for Rating IVDS Based on Incapacitating Episodes, 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; and 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 that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243, Note (1). 1. Entitlement to a rating in excess of 40 percent from January 9, 2020 During the course of the appeal, the Veteran's back disability was increased to 40 percent from January 9, 2020. However, as the increase does not represent a total grant of benefits sought on appeal, his claim for an increased rating remains before the Board. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran was afforded a VA examination in January 2020 to assess the current severity of his disability. The VA examination found an initial range of motion of forward flexion to 20 degrees, extension to 5 degrees, right and left lateral rotation to 15 degrees, and right and left lateral rotation to 20 degrees; the range of motion contributes to functional loss by limiting the Veteran's activities of daily living. Pain was noted on all ranges of motion and causes functional loss. There was evidence of pain on weight-bearing and non-weight-bearing. Evidence of localized tenderness or pain on palpation in the bilateral lower lumbar paraspinal muscles that were moderate in severity. The Veteran was not examined immediately after repetitive use over time with pain, but the examination was found to be medically consistent with the Veteran's statements describing functional loss of pain, fatigue and lack of endurance with a range of motion of forward flexion to 20 degrees, extension to 5 degrees, right lateral flexion and left lateral flexion to 15 degrees, right lateral rotation and left lateral rotation to 20 degrees. The examination was not being conducted during a flareup but the examination was found to be medically consistent with the Veteran's statements describing functional loss of pain, fatigue and lack of endurance with a range of motion of forward flexion to 20 degrees, extension to 5 degrees, right lateral flexion and left lateral flexion to 15 degrees, right lateral rotation and left lateral rotation to 20 degrees. There was guarding resulting in an abnormal gait or spinal contour, there was less movement than normal due to ankylosis, limitation or blocking, adhesions with a disturbance of locomotion and interference with standing. Muscle strength testing was normal with no atrophy a normal reflex exam, and decreased sensation to the right thigh, knee, ankle and toes with normal sensation to the left lower extremity in all areas. Straight leg test was negative bilaterally. The Veteran displayed symptoms of radiculopathy with mild intermittent pain in the bilateral lower extremities, moderate paresthesias and/or dysesthesias of the right lower extremity and mild of the left lower extremity, and severe numbness in the right lower extremity and moderate numbness in the left lower extremity. Involvement of the L4/L5/S1/S2/S3 nerve roots bilaterally, with a finding or mild radiculopathy to the left lower extremity and moderate radiculopathy to the right lower extremity. No finding of ankylosis of the spine or any other neurologic abnormalities or findings. The Veteran has IVDS with no episodes of bed rest prescribed in the last 12 months. There is x-ray evidence of extensive degenerative changes and aortic atherosclerosis. The Board finds that from January 9, 2020, the Veteran's back disability does not warrant a disability rating higher than 40 percent. There is no evidence that the Veteran had unfavorable ankylosis of the entire thoracolumbar spine. Moreover, none of the lay evidence indicates that the Veteran's lumbar spine was ever fixed in flexion or extension, locked, or significantly stiffened. At no time during the period on appeal, do the Veteran's symptoms more nearly approximate the unfavorable ankylosis of the entire thoracolumbar spine required for a higher 50 percent rating under the General Rating Formula. Additionally, the evidence does not show that any incapacitating episodes required bed rest prescribed by a physician with incapacitating episodes of a total duration of at least six weeks during the past twelve months. As such, a rating in excess of 40 percent is not warranted for the Veteran's low back disability. VA must, in some circumstances, consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination, see DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); 38 C.F.R. §§ 4.40, 4.45, this rule does not apply where, as here, the Veteran is receiving the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Similarly, Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016) are not for application because those decisions pertain to the adequacy of examinations as they relate to range of motion findings, but range of motion findings are not relevant here because they cannot result in a higher rating. As noted above, the evidence also does not reflect, that he has suffered from incapacitating episodes that required prescribed bed rest due to IVDS or ankylosis of the thoracolumbar spine. The Board has also considered whether the Veteran's service-connected low back disability manifests any associated objective neurologic abnormalities at any time during the appeal period; however, the record does not show any neurological abnormalities associated with his low back disability. Therefore, the Board finds that a separate rating for an associated neurological disability is not warranted. Service connection for radiculopathy of the right and left lower extremities has been established and is separately compensated. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 40 percent for his low back disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND The Veteran contends that his lumbar spine is more severe than has been rated throughout the appeal. The Veteran's lumbar spine is rated as 10 percent disabling, from July 7, 2012 to May 2, 2017, 20 percent from May 3, 2017 to January 8, 2020, and 40 percent from January 9, 2020. Specifically, the Veteran and his representative argue that his symptoms were not adequately addressed including functional loss due to pain, weakness, fatigability, incoordination or pain on movement of a joint. See March 2021 Appellate Brief. Background In the August 2019 JMPR, the Parties observed that, in the September 2018 Board decision, the Board relied on an October 2012 VA examination to deny the Veteran an increased evaluation for the period prior to May 3, 2017. The parties found that the October 2012 VA examiner indicated that the Veteran experienced flare ups of his low back condition, but the examiner did not discuss the effect or impact of flare-ups on Veteran's functioning, other than to say the Veteran experienced pain. Thus, the August 2019 JMPR Parties agreed that remand is warranted for a new VA examination. The Board notes that the October 2012 VA examination contains no indication of whether the examination was conducted during a flare-up, whether flare-ups caused functional loss, how often flare-ups occurred, or what other factors limited functional ability with flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Concerning the period after May 3, 2017, the August 2019 JMPR Parties observed that, in the September 2018 decision, the Board relied on a May 2017 VA examination to deny entitlement to an increased evaluation. The Board reviewed the May 2017 examination in terms of Correia and decided that Correia does not apply to ratings for the spine for various reasons. The August 2019 JMPR noted that the Correia case contained a footnote indicating medical professionals should determine whether passive range of motion testing can be performed in a particular case. Given the foregoing, the August 2019 JMPR Parties found that the Board's statement of reasons or bases was inadequate, as the May 2017 examination did not contain all the required Correia testing or a determination by the examiner regarding the efficacy of passive testing. The August 2019 JMPR Parties also found that the Veteran must be afforded another VA examination concerning his low back disability. 1. Entitlement to an initial rating in excess of 10 percent for a low back disability prior to May 3, 2017 The December 2019 BVA remand asked the examiner to obtain the following: "regarding the period prior to May 3, 2017, the examiner must consider the evidence of record and provide an opinion regarding the impact of the Veteran's flare-ups during that period, including as much information as possible concerning the frequency, duration, characteristics, severity, or functional loss from the Veteran's flare-ups of back symptoms during that period. Again, the extent of any pain, weakened movement, excess fatigability, lack of endurance, and incoordination during a flare-up should also be described by the examiner." Unfortunately, the examiner provided a restatement of the July 2016 opinion finding the Veteran's back disability was more likely than not due to service, the legal standard for service connection, which is not at issue here. The examiner also gave a summary of the Veteran's VA examination in May 2017. The examiner failed to provide an opinion regarding the impact of the Veteran's flare-ups during the period of July 7, 2012, to May 2, 2017, as required by the August 2019 JMPR and December 2019 BVA remand. 2. Entitlement to a rating in excess of 20 percent for a low back disability from May 3, 2017 to January 8, 2020 As noted above, the Board remanded the Veteran's claim for increase to evaluate the Veteran's low back disability for two distinct periods of time. Here, the VA examiner did not provide an opinion on the severity of the Veteran's disability from May 3, 2017 nor cure the defects in Correia as required by the August 2019 JMPR and December 2019 Board remand. Rather, the RO increased the Veteran's disability from the date of the examination in January 2020. As the examinations performed during the course of the appeal do not conform to the Court's holdings in Correia and Sharp, a remand is necessary in order to afford the Veteran a VA examination for the lumbar spine that addresses such matters. The matters are REMANDED for the following actions: 1. Update the record for any VA or private treatment records. The most recent VA records date to October 2020. 2. Schedule the Veteran for a VA examination to assess the severity of the service-connected lumbar spine disability. The record, including a copy of this remand, must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions. 3. For the period prior to May 3, 2017, the examiner must consider the evidence of record and inquire as to periods of flare-up and not the frequency and duration of any such flare-ups from July 7, 2012 to May 3, 2017. Any additional impairment on use or in connection with flare-ups should be described in terms of the degree of additional range of motion loss. The examiner should provide a RETROSPECTIVE OPINION specifically describing the severity, frequency, and duration of flare-ups (which should be described in detail and include frequency as well as symptoms experienced); name the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, such flare-ups affect functional impairment. Again, the extent of any pain, weakened movement, excess fatigability, lack of endurance, and incoordination during a flare-up should also be described by the examiner. 4. For the period from May 3, 2017 to January 8, 2020, the VA examiner should provide a RETROSPECTIVE OPINION to include complete range of motion findings for the low back. Range of motion measurement must be provided in active motion, passive motion, weight-bearing, and nonweight-bearing positions (as appropriate). Additionally, the examiner must document all functional loss, including due to pain on use, weakness, repetitive motion, flare-ups (which should be described in detail and include frequency as well as symptoms experienced), fatigue, and incoordination. Any functional loss must be documented in terms of additional lost degrees of range of motion. 5. If the examiner determines that a requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 6. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kelsey Love, 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.