Citation Nr: 21030201 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 15-22 045 DATE: May 18, 2021 ORDER Entitlement to increases in the staged (10 percent prior to January 2, 2020, and 20 percent from that date) ratings assigned for lumbosacral spine arthritis with spondylosis and intervertebral disc syndrome (IVDS) (a low back disability) is denied. FINDINGS OF FACT 1. Prior to January 2, 2020, the Veteran's low back disability is not shown to have been manifested by forward flexion of the thoracolumbar spine limited to 60 degrees or less, combined range of thoracolumbar motion limited to 120 degrees or less, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or incapacitating episodes of IVDS that required bed rest prescribed by a physician. 2. From January 2, 2020, the low back disability is not shown to have been manifested by forward flexion limited to 30 degrees or less, ankylosis of the spine, or incapacitating episodes of IVDS that required bed rest prescribed by a physician; additional (not already acknowledged and separately rated) neurological manifestations are not shown or alleged. CONCLUSION OF LAW Ratings for the Veteran's low back disability in excess of 10 percent prior to January 2, 2020, and in excess of 20 percent from that date are not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (Codes) 5235-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a Veteran who served on active duty from August 2005 to April 2010. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision, which granted service connection for lumbosacral spine arthritis, rated 10 percent, effective December 20, 2011. In February 2016, an informal conference was held before a Decision Review Officer (DRO) at the RO; a summary is associated with the Veteran's record. In August 2019, a videoconference hearing was held before the undersigned; a transcript is in the Veteran's record. In August 2019, the case was remanded for additional development. An interim (July 2020) rating decision increased the rating for the low back disability to 20 percent, effective January 2, 2020. [And also granted service connection and assigned separate ratings for left and right lower extremity radiculopathy, rated 10 percent, each, effective January 2, 2020. The Veteran has not expressed disagreement with that decision, and the matters of the ratings for right and left lower extremity radiculopathy are not before the Board.] Entitlement to increases in the 10 percent prior to January 2, 2020 and 20 percent from that date ratings for a low back disability is denied. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where, as here, the appeal is from the initial rating assigned with an award of service connection, the severity of the disability during the entire period from the award of service connection to the present, and the possibility of "staged" ratings for distinct periods of time when varying degrees of disability were shown, must be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). When a question arises as to which of two ratings applies under a particular code, the higher rating 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, including regarding degree of disability, is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. The criteria for rating spine disabilities are found in Codes 5235 5243. A spine disability which includes disc pathology may be rated either under the General Rating Formula for Diseases and Injuries of the Spine (General Formula) or based on Incapacitating Episodes of Disc Disease, whichever is more favorable. Under the General Formula, the following ratings apply to disabilities of the thoracolumbar 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 (ROM) 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 when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or combined ROM of the thoracolumbar spine is not greater than 120 degrees; or there is 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 limited 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. And a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Any associated objective neurologic abnormalities are to be evaluated separately, under an appropriate diagnostic code. See Note (1) following the General Formula. Under the Formula for IVDS Based on Incapacitating Episodes, the following ratings apply: A 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week, but less than two weeks, during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks per year. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks per year. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks but less than twelve weeks per year. An "incapacitating episode" is defined as "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." 38 C.F.R. § 4.71a, Code 5243, Formula for Rating IVDS Based on Incapacitating Episodes, and Note (1) following. In determining the degree of limitation of motion, the provisions of 38 U.S.C. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. Factual Background A March 2010 (prior to the period for consideration) treatment record notes complaints of lower back pain. X-rays showed diminished lumbar lordosis, with transitional vertebra at lumbosacral junction. ROM was full; there was tenderness to palpation of the lower left paraspinous muscles. A June 2011 lumbar spine MRI showed "large broad-based right paracentral disc herniation at L5-S1 with mild stenosis right lateral aspect of the canal and mild to moderate right foraminal encroachment." On September 2014 VA back examination, the diagnosis was degenerative arthritis of the spine (degenerative joint disease (DJD)). The Veteran reported back pain and limited mobility. He stretches several times per day and can no longer run or perform sit-ups. He takes motrin for pain. He reported that he cannot stand for more than one hour; he also reported "incredible soreness," occasional spasm, and occasional numbness in the left buttock. He endorsed flare-ups precipitated by running, continuous standing, heavy lifting over 50 pounds, and bending to pick things up. Objective ROM testing showed forward flexion to 90 degrees or greater, extension to 10 degrees, right lateral bending to 15 degrees, left lateral bending to 20 degrees, and right and left rotation to 20 degrees, each (all movements with objective evidence of pain noted at the end of the movement). Repetitive use testing did not result in additional limitation of ROM; additional functional impairment was reported due to pain, less movement than normal, interference with sitting, standing, and/or weight-bearing, and lack of endurance. There was no tenderness to palpation, no muscle spasms, and no guarding of the thoracolumbar spine. Muscle strength, reflex, and sensory tests were all normal. The spine was not ankylosed. Radiculopathy and IVDS were not diagnosed. There were no other neurologic abnormalities (such as bowel or bladder problems). The Veteran did not use an assistive device. It was noted that he ambulated without antalgia, removed his shoes and socks without difficulty, and transferred to the exam table independently. The examiner opined that the Veteran's back disability does not impact on his ability to work, and that it would be impossible without resorting to speculation to indicate any additional ROM loss during a flare-up or over a period of time, compared to the current examination findings. In an October 2014 Notice of Disagreement (NOD), the Veteran requested a 30% or higher rating. He reported that he cannot perform activities he used to, such as running and playing recreational sports. He reported that he "get[s] out of bed slower in order to stretch for the day." In a June 2015 VA Form 9, the Veteran reported similar symptoms/limitations as noted on his NOD. He also reported that he tries to stay healthy by eating well and practicing yoga. He reported that he cannot stand for more than 20 minutes in the morning, and that he must take a naproxen and ice his back after mowing the lawn. A July 2015 VA treatment record notes normal flexion and some limitation of extension. A lumbar spine MRI in later July 2015 showed "moderate L5-S1 disc bulge/protrusion greater to the right of midline which causes moderate right lateral recess stenosis and deforms and mildly flattens the right anterior aspect of the dural sac at that level." A September 2015 VA treatment record notes complaints of low back pain when standing. He denied numbness, tingling, or shooting pain. Tenderness was noted to palpation at the lower lumbar spine and lumbar musculature. Motor strength was normal; sensation was intact. A November 2015 VA treatment record notes complaints of low back pain and leg pain/weakness when standing for hours; sitting alleviated the pain. He rated the pain as 3/10 when sitting, 7/10 when standing, 4/10 when walking, and 3/10 when lying down. He denied bowel or bladder problems. He reported doing yoga (which sometimes causes pain) and riding a stationary bike. Motor strength was normal; reflexes were intact. Forward flexion was normal; there was some limitation of extension. Discomfort was noted with right and left lateral bending. The plan included referral to prosthetics for a back brace. At his February 2016 DRO hearing, the Veteran reported increased symptomatology. He stated that "he needs chiropractic treatment to keep his back aligned due to his left hip dysplasia." On February 2016 VA back examination, the diagnosis was DJD of the lumbar spine with IVDS. The Veteran reported daily low back pain aggravated by prolonged standing, walking, or lifting. He complained of pain that radiates to the buttocks; he denied a history of numbness, paresthesia, or radiation to the legs. He reported a "severe attack last year that lasted for several months when he had to observe full bed rest. Was not hospitalized." He endorsed having flare-ups "about 2-3 per year but lasting for weeks triggered by repetitive lifting with loss of function from pain." Objective ROM testing found flexion to 80 degrees, extension to 5 degrees, right and left lateral flexion to 10 degrees, each, and right and left rotation to 25 degrees, each. Pain was noted on all movements and with weight-bearing. Repetitive use testing did not result in additional loss of function of ROM. Tenderness was noted to palpation over the lower lumbar area. The examiner was not able to provide an estimated ROM during flare-ups or after repeated use over time without speculation. There was muscle spasm, but it did not result in abnormal gait or abnormal spinal contour. Muscle strength, reflex, and sensory tests were all normal. The spine was not ankylosed; radiculopathy was not found; IVDS was diagnosed. The examiner checked the box to indicate such required bed rest having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; however, he also checked the box to indicate it was by the Veteran's report only, without documentation. The Veteran did not use an assistive device. The examiner opined that the back disability would impact any job requiring prolonged or repetitive standing or lifting. A September 2016 private chiropractic treatment record notes complaints of frequent, severe diffuse left lumbar pain which was achy, sharp, shooting, stiff, and sore in character. Examination showed moderate to severe spasm and tenderness in the left lumbar region on palpation. Strength, reflex, and sensory tests were normal. "All active lumbar ranges of motion were moderately restricted by pain." [Actual ROM measurements were not noted.] Several other chiropractic records from September 2016 to August 2017 note similar complaints/findings. At the August 2019 Board hearing, the Veteran testified that he is unable to walk around a theme park for an afternoon without stopping to sit and stretch his back. He testified that he has begun to feel numbness in his left leg, including when walking around locations for his job. He reported that he cannot do sit-ups, run, do back workouts, or do leg workouts with weight-training; rather, he focuses on core training and yoga. He testified that he gets lower back spasms, and must put his hand on the counter to brush his teeth, "Because, if I don't, my back will literally go out on me, some mornings." He testified that he has "moderate pain all the time." During flare-ups, he stated that he is "on the couch with ice packs." He reported treatment including ice packs, heat pads, stretching, and ibuprofen; he preferred to stay away from opioids. He wears a back brace when working or doing physical activity. He reiterated that his back disability is "progressively getting worse" over time. August 2019 spine x-rays showed lower lumbar spondylosis and variant lumbosacral anatomy. In a December 3, 2019 statement, the Veteran reported that his "lower back condition [is] worse." He also reported bilateral sciatica symptoms. He stated that he was still awaiting a lumbar spine examination (directed in the Board's August 2019 remand). On January 2, 2020 VA (fee basis) back examination, the diagnoses were lumbosacral strain, lumbosacral spine arthritis, lumbar spondylosis, and bilateral lower extremity radiculopathy with IVDS. The Veteran reported his condition has worsened, and that he experiences low back soreness and pain, and numbness/tingling that radiates to both legs. He reported treatment including chiropractic treatment every couple of weeks, ibuprofen, cold packs, heat packs, and Epsom salt. He endorsed flare-ups with soreness, pain, and numbness/tingling to both legs that are precipitated by running, squatting, walking, and standing for long periods of time. Objective ROM testing showed forward flexion to 50 degrees, extension to 10 degrees, right lateral flexion to 15 degrees, left lateral flexion to 10 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 15 degrees. Pain was noted in all planes of motion and with weight-bearing. Tenderness was noted to palpation over the lumbar region. The examiner opined that with repeated use over time and during flare-ups, pain, weakness, and lack of endurance cause functional loss; she estimated that ROM, however, would remain the same as initially measured. There was no guarding or muscle spasm. The spine was not ankylosed. Muscle strength tests all showed active movement against some resistance (all 4/5). There was no muscle atrophy. Reflex and sensory tests were normal. Mild radiculopathy in both lower extremities was ,diagnosed. There were no other neurologic abnormalities. IVDS was diagnosed, but there were no signs or symptoms that required bed rest prescribed by a physician over the prior 12 months. The Veteran reported that he wears a back brace regularly when running, squatting, walking, and standing for long periods of time. The examiner explained such movements cause functional impairment when considering the impact of the Veteran's back disability on his ability to work. On January 14, 2020 VA (fee basis) mental disorders examination, the Veteran reported that upon discharge from service he attended college and earned several degrees. He reported that "working can exacerbate his back pain." He reported prior use of a standing desk "that offered him the ability to move." He stated that he is "on his feet a lot," and that if he stands idle too long, he notices sciatica. He reported that he used to be a very active athlete, but now must limit his physical movement to prevent further injury. Analysis The Veteran's low back disability has been assigned a 10 percent rating prior to January 2, 2020, and 20 percent from that date. Prior to January 2, 2020 The Board finds that the record does not show that prior to January 2, 2020, the low back disability was manifested by symptoms/impairment of (or approximating) a severity warranting the next higher, 20 percent, rating under the General Formula. Forward flexion was to 80 degrees or greater in March 2010, on September 2014 examination, in July 2015, in November 2015, and on February 2016 VA examination; repetitive use testing on examinations during this period did not result in additional loss of ROM; forward flexion limited to 60 degrees was not shown. Combined range of thoracolumbar motion limited to 120 degrees or less was not shown. There is no competent evidence of additional (to separately rated bilateral lower extremity radiculopathy) neurological manifestations of the back disability. As IVDS was diagnosed on a VA examination during this period, the Board has also considered whether a higher schedular rating would be warranted if the low back disability was rated under the Formula for Rating IVDS based on incapacitating episodes. Under that Formula, the next higher (20 percent) rating for IVDS requires at least 2 (but less than 4) weeks of total duration of incapacitating episodes in the last 12 months. Although the Veteran reported on February 2016 examination that he sustained a "severe attack last year that lasted for several months when he had to observe full bed rest," the record does not show bed rest prescribed by a physician and treatment by a physician, as required in Note (1) under Code 5243. Notably, he denied hospitalization and the February 2016 examiner noted that such reported bed rest was without documentation. [The Veteran has not submitted other evidence, such as a copy of doctor's order, employment sick/medical leave records (as he was working then), which would tend to support the report of "several months...full bed rest."] Accordingly, a higher rating based on incapacitating episodes is not warranted. The Board acknowledges the Veteran's reports of back spasms; however, such were not shown to have resulted in abnormal gait. The Board also acknowledges the September 2016 private chiropractic treatment record which noted that "active lumbar ranges of motion were moderately restricted by pain." However, actual ROM measurements were not reported, and thus the notation does not tend to show forward flexion was to 60 degrees or less (to warrant a 20 percent rating). The Board acknowledges the Veteran's report of worsening in August and December 2019. However, the objective evidence of record does not show symptoms or impairment of (or approximating) a severity warranting a 20 percent rating until the January 2, 2020 examination, when forward flexion was noted to be limited to 50 degrees (including on estimate for flare-ups and with repeated use over time). Accordingly, a 20 percent rating is not warranted prior to January 2, 2020. From January 2, 2020 The Board finds that the record does not show that since January 2, 2020, the Veteran's low back disability has been manifested by symptoms and/or impairment of (or approximating) a severity warranting the next higher, 40 percent, rating under the General Formula. Forward flexion limited to 30 degrees or less or ankylosis of the thoracolumbar spine is not shown, even with consideration of additional limitation on repeated use and during flare-ups. As outlined above, on January 2, 2020 examination, forward flexion was to 50 degrees, and estimated to remain at 50 degrees during flare-ups or with repeated use over time. It is not shown (or alleged) there are additional (to the already separately rated bilateral lower extremity radiculopathy) neurological manifestations of the back disability. As bedrest for the low back disability is not shown (or alleged) to have been prescribed by a physician during this period, there is no basis for rating the disability based on incapacitating episodes. Accordingly, a rating in excess of 20 percent is not warranted from January 2, 2020. The matter of entitlement to a total disability rating based on individual unemployability (TDIU) is not raised by the record, as the record shows that the Veteran continues to work. See August 2019 Board hearing transcript; see also January 2020 VA (fee basis) mental disorders examination report. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dupont, 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.