Citation Nr: 21040595 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-48 543 DATE: July 6, 2021 ORDER Entitlement to a 40 percent rating, but no higher, for lumbar spine disability is granted from February 23, 2015. FINDING OF FACT Throughout the appeal period, when considering pain, flare-ups, and corresponding functional impairment, the Veteran's lumbar spine disability more closely approximated forward flexion to 30 degrees, with no evidence of ankylosis of the lumbar spine. CONCLUSION OF LAW From February 23, 2015, the criteria for a rating of 40 percent, but no higher, for lumbar spine disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.45, 4.71a, Diagnostic Code (DC) 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from June 1973 to September 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran died in August 2019. The appellant, who is the Veteran's surviving spouse, has been substituted as the Veteran for purposes of processing the appeal to completion. 38 U.S.C. § 5121A ; 38 C.F.R. § 3.1010. In a March 2019 decision the Board of Veterans' Appeal (Board), among other things, denied a rating in excess of 20 percent for a back disability. The Veteran appealed the March 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court), which was continued by the appellant following the Veteran's death. In an August 2020 Order, that incorporated the parties' Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the Board's March 2019 decision to the extent that it denied a rating in excess of 20 percent for a back disability. In March 2021, the Board remanded the matter for additional development. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court of Appeals for Veterans Claims (Court) later clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Veteran is currently in receipt of a 20 percent rating for his lumbar spine disability, under DC 5242-5243. 38 C.F.R. §§ 4.27, 4.71a, General Rating Formula for Diseases and Injuries of the Spine. The current appeal period before the Board begins on February 23, 2015, the date VA received the Veteran's claim for an increased rating, plus the one-year look back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Diagnostic Code 5243 directs VA to rate the Veteran under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5243. Further, if a Veteran has x-ray evidence to establish degenerative arthritis of the spine with noncompensable limitation of motion, he or she is entitled to a 10 percent disability rating for each major joint or group of minor joints affected by limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, spine disorders are to be rated under the General Rating Formula for Diseases and Injuries of the Spine on the basis of limitation of motion. Under these diagnostic codes, a 40 percent rating is assigned when forward flexion of the thoracolumbar spine is 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned when there is unfavorable ankylosis of the thoracolumbar spine only. Finally, a 100 percent rating is assigned when there is unfavorable ankylosis of the entire spine. Unfavorable ankylosis is defined by VA regulation as a condition in which the 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 on the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching. Id at Note (5). Fixation in the neutral position of zero degrees always represents favorable ankylosis. Id. The General Rating Formula for Diseases and Injuries of the Spine provides further guidance in rating diseases or injuries of the spine. In pertinent part, Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note (2) provides 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. See also Plate V, 38 C.F.R. § 4.71a. Otherwise, disabilities of the spine are rated according to the number of incapacitating episodes a person has had in the past 12 months. 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. See Note (1) to Diagnostic Code 5243. Under the formula, a 40 percent rating is assigned for incapacitating episodes having a total duration between 4 to 6 weeks during the past 12 month period, and a 60 percent rating is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, 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. In addition to considering the orthopedic manifestations of a lumbar spine disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. As a preliminary matter, the Board acknowledges that effective February 7, 2021, regulation changes have been made to Diagnostic Codes 5243 and 5003, among other codes recognized in the regulations. Under the new regulations, Diagnostic Code 5243 is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root and Diagnostic Code 5003 qualifies as a code for degenerative arthritis other than post-traumatic arthritis. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243, 5244); Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76460 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5003). In the August 2020 JMPR, the parties agreed that the May 2015 VA examination was not adequate because the examiner did not provide back motion in both active and passive motion and in weight-bearing and non-weight-bearing as required by the Court in Correia v. McDonald, 28 Vet. App. 158 (2016), and because the examiner did not provide the range of motion of the back during flare-ups as required by the Court in Sharp v. Shulkin, 29 Vet. App. 26 (2017). As the Court noted no other deficiencies in the record, and for the sake of judicial economy, the Board hereby incorporates all other facts and analysis of the vacated March 2019 Board decision by reference. See generally Carter v. Shinseki, 26 Vet. App. 534, 542-43 (2014), vacated on other grounds sub nom Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015). From February 23, 2015, a 40 percent rating for the Veteran's back disability is warranted. While objective testing during this period does not reflect forward flexion of the lumbar spine to 30 degrees or less, when considering the Veteran's competent and credible reports of severe limited lumbar spine motion and pain during flare-ups, resulting in periods of incapacitation, coupled with the March 2013 and May 2015 VA examiners' assessment of a significant decrease in mobility and limitation in functional ability during these times, and affording him the benefit of the doubt, the Board finds that the record supports a 40 percent from the beginning of the appeal period, or February 23, 2015. Specifically, the March 2013 VA examiner found forward flexion was limited to 40 degrees, without providing a range of motion estimate during a flare-up. During the May 2015 VA examination, the Veteran reported flare-ups a couple of times per month, lasting up to seven days. He described pain during flare-ups as a 9 out of 10 on the pain scale, and that the flares moderately to severely limited his activity. The Veteran's forward flexion was limited to 63 degrees, with pain causing functional loss. The May 2015 VA examiner failed to provide range of motion of the back during flare-ups. Notably, the Veteran reported physician prescribed bedrest of three to four days. Affording the Veteran the benefit of the doubt, the Board finds that during flare-ups the Veteran's forward flexion of the lumbar spine is limited to 30 degrees or less. A rating in excess of 40 percent is not warranted at any point during the appeal period, as the Veteran did not assert that he had ankylosis of the thoracolumbar spine, even when considering flare-ups and repetitive use, and the evidence does not indicate otherwise. See May 2015 VA examination report. Therefore, because there is no evidence of ankylosis, a rating higher than 40 percent is precluded. As 40 percent is the highest schedular rating for limitation of motion, consideration of the provisions of DeLuca are not required. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Similarly, since the Veteran is in receipt of the maximum rating for limitation of motion of the thoracolumbar spine, the Court's holding in Correia v. McDonald, 28 Vet. App. 158 (2016) is not applicable, and any examination inadequacies regarding range of motion testing of the thoracolumbar spine as described in 38 C.F.R. § 4.59 would be inconsequential and would result in harmless error. Additionally, any deficiencies in the examiners' inability or failure to provide an estimate of additional loss of range of motion during flare-ups is moot. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (finding orthopedic examination inadequate with regard to flare-ups where the examination was the basis for a denial of a higher disability rating and the Veteran was not receiving the maximum schedular rating based on limitation of motion). As already discussed, the Veteran did not assert, the appellant does not assert, and the evidence does not show, unfavorable ankylosis of the thoracolumbar spine. Therefore, the Board finds that Correia and Sharp are inapplicable in this case. Additionally, the Board has considered whether evaluating the Veteran's back disability under the IVDS Formula would be more beneficial to him. Although the Veteran reported having periods of incapacitation, he did not contend, and the record does not otherwise show, incapacitating episodes of IVDS having a total duration of at least 6 weeks over a 12-month period, to allow for assignment of a 60 percent rating. See 38 C.F.R. § 4.71a , IVDS Formula, Note (1). Moreover, during the appeal period, the Veteran was in receipt of separate ratings for lower extremity radiculopathy associated with his back disability, which would not be available if he was rated using the IVDS Formula. Thus, an increased rating is not available under the IVDS Formula. Finally, the Board notes that the Veteran perfected an appeal as to the issue of entitlement to a rating in excess of 10 percent for painful lumbar laminectomy scar, prior to February 23, 2015. The March 2019 Board decision failed to address this issue. The Board emphasizes that the parties to the JMPR identified no other deficiencies in the Board's March 2019 analysis. The Court has stated that advancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court, and that such a practice hinders the decision-making process and raises the undesirable specter of piecemeal litigation. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) ("Court will [not] review BVA decisions in a piecemeal fashion"); see also Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990), aff'd, 972 F.2d 331 (Fed. Cir. 1992) ("[a]dvancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court"). The Board is therefore confident that if the Court had any additional concerns regarding the Board's findings, such concerns would have surfaced in the JMPR or the Court Order so that any deficiencies could be corrected. For the foregoing reasons, a rating of 40 percent, but no higher, is warranted for the Veteran's lumbar spine disability. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Forde, 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.