Citation Nr: 21030130 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 15-38 612 DATE: May 17, 2021 ORDER Entitlement to a 40 percent rating for lumbar spine degenerative disc disease with arthritis prior to May 6, 2019, is granted. Entitlement to a rating in excess of 40 percent for lumbar spine degenerative disc disease with arthritis from May 6, 2019, is denied. FINDING OF FACT Throughout the appeal period, the Veteran's lumbar spine degenerative disc disease with arthritis has been manifested by functional loss more nearly approximating forward flexion limited to 30 degrees or less, but unfavorable ankylosis of the entire thoracolumbar spine, neurologic impairment outside of right and left lower extremity radiculopathy, and/or incapacitating episodes as defined by VA have not been shown. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating for lumbar spine degenerative disc disease with arthritis, prior to May 6, 2019, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59, 4.71a Diagnostic Code 5242 (2020). 2. The criteria for a rating in excess of 40 percent rating for lumbar spine degenerative disc disease with arthritis, from May 6, 2019, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1988 to April 1989. This matter was previously before the Board in August 2018, February 2020, and December 2020, at which time it was remanded to the agency of original jurisdiction (AOJ) for additional development. The case has since returned to the Board for the purpose of appellate disposition. The Board notes that the March 2021 examination obtained in conjunction with the December 2020 Board remand did not provide a retrospective assessment as to the past extent of his disability as instructed. However, the Board finds that the 2021 examination findings, as well as other evidence of record, is sufficient to determine the level of disability throughout the appeal period and the Board therefore concludes that there has been substantial compliance with the Board's instructions in this regard. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). 1. Increased rating for degenerative disc of the lumbar spine with degenerative arthritis The Veteran contends that he is entitled to an increased rating for his lumbar spine disorder. Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). As the Veteran has already been awarded staged ratings for this disability, the Board will consider the propriety of the rating at each stage. In addition, when assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. His lumbar spine disability, degenerative disc disease of the lumbar spine with degenerative arthritis, is rated as 20 percent disabling under the criteria of 38 C.F.R. § 4.71A, Diagnostic Code 5242, which provides that degenerative arthritis is to be evaluated unde the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Disease (IVDS) based on Incapacitating Episodes. At the outset, the Board notes that while portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, the rating criteria for the spine and IVDS were not changed. Under the General Rating Formula for Diseases and Injuries of the Spine, 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 assigned for flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine; and 100 percent 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 states that, for VA compensation purposes, normal forward flexion of the thoracolumbar 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 thoracolumbar 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. IVDS (preoperatively or postoperatively) is to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. A 10 percent disability rating is assigned for incapacitating episodes having a total duration of at least one week but less than two weeks during the past twelve months, with higher evaluations for incapacitating episodes of increased duration. Note 1 states 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 indicates that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, the rater is to evaluate each segment 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. On VA examination in February 2014, the Veteran reported daily low back pain. He noted exacerbations of pain with prolonged standing of 10 to 15 or minutes. He used a TENS unit for low back pain. Objectively, range of motion testing revealed forward flexion to 45 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees, and right lateral rotation to 30 degrees or greater, and left lateral rotation to 20 degrees, each with pain at the endpoint of range of motion. The Veteran denied flare-ups. He was able to perform repetitive range of motion testing without any change in range of motion. With respect to functional loss, he had less movement than normal and pain on movement. The examiner indicated that the Veteran's range of motion may or may not be reduced due to pain on repetitive use and he was unable to state the degree without speculation. The Veteran did not have localized tenderness or pain to palpation for the joints or soft tissues of the spine, muscle spasm resulting in an abnormal gait or spinal contour. There was no ankylosis of the spine and he did not have IVDS. He regularly used a brace. Muscle strength testing of the lower extremities yielded normal findings. Reflexes were 1+ in the bilateral knees and ankles. Sensation was normal and a straight leg raising test was negative. There were no other signs or symptoms attributable to radiculopathy. No other neurologic abnormalities were present. The examiner diagnosed degenerative disc disease of the lumbar spine. With respect ot functional impact, the examiner indicated that the Veteran had daily pain and exacerbations with prolonged standing. In May 2017, the Veteran presented to the VA emergency department with complaint of atraumatic midline lower back pain for 2 days. His back only hurt with movement. He was assessed with acute on chronic back pain. It was also indicated in May 2018 that the Veteran had presented with a flare of back pain. The Veteran indicated that it was hard to describe and constant in nature. It was making it difficult to get out of a car or up from bed. He denied numbness or tingling. Objectively, there were no focal deficits and normal sensation, but an abnormal gait due to back pain was noted. There was no point tenderness along the spine. Back flexion and extension were limited due to pain, and a straight leg raise test was negative. Another May 2018 VA treatment report reflects that the Veteran received a lumbar corset brace. On VA treatment in October 2018 the Veteran reported chronic low back pain that radiated into the left thigh for the past several years. He denied paresthesias or motor weakness, or bowel or bladder incontinence. Objectively there was no local spinal tenderness or paravertebral muscle spasm. Straight leg raising was negative bilaterally to 60 degrees, and he was able to do a heel/toe walk with normal gait. Neurologic examination was grossly intact. On VA examination in May 2019, the Veteran reported back pain that he rated as a level of 7 on a scale to 10, with flare-ups to a 9. He noted that flare-ups could last a whole day up to a week. He indicated that his back pain was near flare-up level on examination. He worked part-time in security. He estimated that he had no range of motion (0 degrees) on all ranges of motion during flare-ups. The Veteran described difficulty with walking and standing for long periods of time. He also had difficulties with running, stairs, and bending over. Range of motion testing revealed forward flexion to 35 degrees, extension to 30 degrees, right and left lateral flexion to 25 degrees, and right and left lateral rotation to 25 degrees. The examiner indicated that range of motion was limited due to pain. There was evidence of pain with weightbearing and tenderness at the midline and paraspinal area on the right and left. The Veteran was unable to perform repetitive use testing, as he felt that any repetitive motion would increase his pain after examination, and he would continue to have more pain in the next several days. The examiner noted that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. Factors involved would be pain, fatigue, weakness, lack of endurance, and incoordination. The examiner was unable to describe in terms of degree of loss of range of motionthe Veteran stated that he was not able to do any repetition. If he did repetitive range of motion, his blood pressure rose due to pain. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. Muscle strength testing of the lower extremities revealed mostly normal findings, but with reduced (4/5) strength on knee extension. Reflexes were 1+ (hypoactive) in the lower extremities. Sensory examination was normal. There was moderate constant/intermittent pain in the right lower extremity and mild constant/intermittent pain in the left lower extremities. There was mild paresthesias/dysesthesias and numbness in the bilateral lower extremities. The examiner indicated moderate radiculopathy of the right lower extremity and mild radiculopathy of the left lower extremity. No other neurological abnormalities were present. The Veteran did not have IVDS and episodes requiring bed rest. The examiner diagnosed lumbosacral strain. He noted that, with respect to functional impact, prolonged standing and walking would be problematic. In a July 2019 statement the Veteran reported that he could only work 3 days a week because he needed a few days off to relax his back. On VA examination in March 2020, the Veteran reported continued pain and numbness in the lower back. He also reported increased pain. He also experienced flare-ups, which caused him to take a lot of time getting out of bed. Range of motion testing revealed flexion to 30 degrees, extension to 10 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 10 degrees. Pain was noted on all range of motion. He had difficulty standing up straight. There was no localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine or pain with weight-bearing. The Veteran was unable to perform repetitive use testing due to pain he rated an 8 on a scale to 10. The examiner indicated that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time and during flare-up. The examiner estimated additional loss of motion of flexion to 25 degrees, extension to 5 degrees, right lateral flexion to 10 degrees, left lateral flexion to 5 degrees, and right and left lateral rotation to 5 degrees after repetitive use. During flare-up, the examiner estimated range of motion as 20 degrees flexion, and 5 degrees of extension, right and left lateral flexion, and right and left lateral rotation. There was no objective evidence of pain on non-weight bearing and passive range of motion was the same as active range of motion. The Veteran had guarding resulting in an abnormal gait or abnormal spinal contour. Additional factors contributing to disability included less movement than normal and interference with standing. Neurologically, muscle strength was 4/5 in the bilateral lower extremities. Reflex and sensory examination was normal. Straight leg raising test was positive bilaterally. The examiner noted mild constant pain, moderate intermittent pain, moderate paresthesias, and moderate numbness in the bilateral lower extremities. He indicated that the overall severity of the radiculopathy was mild for both legs. The Veteran did not have ankylosis or IVDS of the thoracolumbar spine. The examiner diagnosed degenerative arthritis of the spine and indicated that the disability did not impact his ability to work. On VA examination in March 2021, the Veteran reported chronic daily back pain that impacted his ability to perform many physical activities for a period of time. Sitting, standing, and walking for longer than 10 minutes required rest or a position change. He had reduced his hours at work at a church from full to part time due to inability to work for long periods of time without a flare-up. His flare-ups required up to 7 days of rest before returning to increased activity. The Veteran reported that the flare-ups occurred twice a month, of a moderate to severe level. The flare-ups lasted 2 to 7 days. They were precipitated by increased physical activity such as walking or standing too long, and were alleviated by rest, changing positions, ibuprofen, and heat. On range of motion testing, flexion was to 30 degrees, extension was to 10 degrees, and right and left lateral flexion and rotation were each to 15 degrees, with pain on range of motion. Passive range of motion was the same as active range of motion. There was pain on palpation of the lumbar spine. The Veteran was able to perform repetitive testing without additional loss of function or range of motion after 3 repetitions. The examiner noted that the Veteran was not being examined immediately after repeated use over time or during flare-up. Estimate range of motion after repeated use over time or during flare-up was flexion to 20 degrees, extension to 5 degrees, and right and left lateral flexion and rotation to 10 degrees. The Veteran had localized tenderness, guarding, or muscle spasm, but it was not severe enough to result in an abnormal gait or an abnormal spinal contour. Muscle strength testing of the lower extremities was normal with no muscle atrophy. Reflexes were normal and sensory examination also yielded normal findings. A straight leg raising test was normal. The examiner noted that signs and symptoms due to radiculopathy included mild intermittent pain and mild paresthesias/dysesthesias of the lower extremities. The examiner noted that there was no ankylosis of the spine or any other neurologic abnormalities. The examiner noted that while the Veteran had IVDS, he had not had any episodes of acute signs and symptoms of IVDS that have required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran regularly used a brace and occasionally used a cane. The examiner diagnosed degenerative arthritis, degenerative disc disease, and IVDS. The examiner indicated that the Veteran's diagnosis impacted his ability to work, in that his back pain impacted his ability to perform many physical activities for a period of time. Sitting, walking, and standing or longer than 10 minutes required rest or a position change. He had reduced his hours at work due to inability to work for long periods of time without a flare-up. Flare-ups required up to 7 days of rest before returning to increased activity. Based upon the foregoing, the Board finds that the aforementioned evidence supports entitlement to a 40 percent evaluation throughout the appeal period. In reaching this determination, the Board notes that the evidence has varied. However, given the Veteran's consistent reports as to the severity of his pain level and symptomatology during flare-up, the length of time between the 2014 and 2019 VA examinations, and the fact that the 2014 VA examiner did not provide estimated range of motion findings on flare-up, the Board resolves reasonable doubt in the Veteran's favor and findings that the Veteran's forward flexion was the functional equivalent of forward flexion limited to 30 degrees or less, warranting the assignment of a 40 percent rating prior to May 6, 2019. With respect to both periods prior to and from May 6, 2019, in order to warrant a higher rating, there must ankylosis of the thoracolumbar spine or ankylosis of the entire spine. Specifically, ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (Ankylosis is "stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint," citing Stedman's Medical Dictionary 87 (25th ed. 1990)). Based on the aforementioned range of motion findings, it is apparent that the Veteran's lumbar spine is not fixated or immobile. Ankylosis was specifically denied on all examinations throughout the appeal period. In addition, as noted above, when assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA is generally required to consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain, weakness, premature or excess fatigability, and incoordination. See DeLuca, 8 Vet. App. at 202; see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Here, there is nothing to suggest fixation of the lumbar spine even during flare-up. The Veteran has reported periods of limited mobility, and indicated that he did not want to perform repetitive range of motion testing on some examinations, but fixation of the spine is not demonstrated. The Board acknowledges the Veterans' report on VA examination in 2019 that his range of motion was 0 for all ranges of motion during flare-up, suggestive of a functional equivalent of immobility. However, while the Veteran is competent to report his symptoms and experiences, the Board finds that his report is outweighed by the other findings of record, and specifically the findings of the 2020 and 2021 examinations, which document further reduced, but not complete loss, of range of motion after repeated use or during flare-up. Consequently, a higher rating is not warranted on this basis. With regard to separate ratings for neurological abnormalities or chronic neurologic manifestations, the record reflects that the Veteran is already service connected for radiculopathy of the right lower extremity and radiculopathy of the left lower extremity (including separate ratings for the femoral and sciatic nerves). The Veteran did not appeal the determination awarding separate ratings for radiculopathy. Moreover, the Veteran has not indicated in the various lay statements of record that that he is seeking a higher rating for the neurologic component of his lumbar spine disability. Accordingly, the Board finds that this matter is not currently before the Board. See Chavis v. McDonough, 2021 U.S. App. Vet. Claims 660* (April 16, 2021) (noting that the Board had jurisdiction over the issues of increased evaluations for bilateral lower extremity radiculopathy, in part, because the lay evidence presented with the claim indicated it was part of his lumbar spine disability claim). No other neurological abnormalities have been demonstrated. The Board has considered other appropriate diagnostic codes, particularly Diagnostic Code 5243 for IVDS. However, there is no evidence of intervertebral disc syndrome and incapacitating episodes as contemplated by the regulation. The Board notes that the 2021 examiner diagnosed IVDS but indicated that the Veteran did not experience incapacitating episodes as defined in the regulation. While the Veteran has reported times were he has to rest due to back pain, there is no indication of these episodes occurring to the frequency of at least 6 months during a 12-month period, as is required for a next-higher, 60 percent rating. Therefore, the Board finds that a higher rating under the Formula for Rating IVDS Based on Incapacitating Episodes is not warranted. Finally, the Board has also considered the provisions of 38 C.F.R. § 3.321(b)(1). Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008). However, in this case, the Board finds that the record does not show that the Veteran's lumbar spine disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extra-schedular referral is required. Thun, 22 Vet. App. 111; VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those marked interference with employment and frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1). In this case, the Veteran's lumbar spine symptoms are fully contemplated by the applicable rating criteria. The symptomatology reported by the Veteran and shown on examination, to include pain, decreased range of motion, and difficulties with functions such as walking and standing, is contemplated by the rating criteria used to assign disability evaluations, and there is no characteristic or manifestations shown that is outside the purview of the applicable rating criteria or is so exceptional as to render the criteria inapplicable. All potentially relevant rating codes have been considered and evaluated. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is therefore not required. The rating assigned considers the impact on the Veteran's employment. In any event, the Veteran does not claim, and the evidence does not reflect, that there has been marked interference with employment, frequent hospitalization, or that the Veteran's symptoms have otherwise rendered impractical the application of the regular schedular standards. The Board has considered the Veteran's report that he has reduced his hours at work due to back pain; however, he is still employed and marked interference with employment has not been demonstrated. Therefore, referral for consideration of an extraschedular rating for the Veteran's lumbar spine disability is not warranted. 38 C.F.R. § 3.321(b)(1). Accordingly, a uniform 40 percent rating for the Veteran's lumbar spine disability is warranted. In reaching the decisions on the proper ratings for the Veteran's service-connected condition, the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d at 1287 (Fed. Cir. 2009). A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. E. Wilkerson, 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.