Citation Nr: 21040725 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 17-45 486 DATE: July 6, 2021 ORDER Prior to June 27, 2018, a 40 percent rating, but no higher, is granted for lumbar sprain with degenerative disc disease. Entitlement to a rating in excess of 40 percent for lumbar sprain with degenerative disc disease is denied. FINDINGS OF FACT 1. Throughout the appeal period, lumbar sprain with degenerative disc disease was manifested with forward flexion to 30 degrees at worst with consideration of functional loss and without unfavorable ankylosis of the thoracolumbar spine or incapacitating episodes having a total duration of at least six weeks during any 12-month period. 2. The evidence does not show that lumbar sprain with degenerative disc disease required physician prescribed bedrest for six weeks a year or resulted in unfavorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. Prior to June 27, 2018, the criteria for a 40 percent for lumbar sprain with degenerative disc disease have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5242. 2. The criteria for a disability rating in excess of 40 percent for lumbar sprain with degenerative disc disease have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, DC 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1990 to June 1991, and from March 1992 to September 2011. A December 2018 Board decision denied a rating in excess of 10 percent for the lumbar spine disability prior to June 27, 2018. The Board decision granted a 20 percent rating from June 27, 2018. The Veteran appealed the December 2018 to the United States Court of Appeals for Veterans Claims (Court). In August 2019, the Court granted a Joint Motion for Partial Remand (JMPR), which vacated the December 2018 Board decision and remanded the case to the Board for action consistent with the Joint Motion. The case remanded for additional development in December 2019 and September 2020. A January 2021 rating decision noted that the grant of a 20 percent rating prior to June 27, 2018 satisfied the appeal for that period. However, as this is not a full grant of the benefit sought, the claim for an increased rating prior to June 27, 2018 remains in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities ("Rating Schedule"), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations 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. See 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. See 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. See 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits as well as the entire history of his disabilities in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Increased rating for lumbar sprain with degenerative disc disease A November 2011 rating decision granted service connection for degenerative disk disease of the lumbar spine. The current increased rating claim was received in March 2016. The Veteran's lumbar spine degenerative arthritis is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Effective February 7, 2021, degenerative arthritis and degenerative disc disease other than intervertebral disc syndrome are to be rated under Diagnostic Code 5242. A rating under Diagnostic Code 5243 for intervertebral disc syndrome is only to be assigned when there is disc herniation with compression of the adjacent nerve root. See 85 Fed. Reg. 76464 (Nov. 30, 2020). However, there were no substantive changes to the rating criteria under these diagnostic codes. Under Diagnostic Code 5242, the disability is rated based on the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. 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. The Formula for Rating Intervertebral Disc Syndrome based upon Incapacitating Episodes provides that a 40 percent rating is assignable with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is assignable with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For purposes of evaluations 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). 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. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. The Veteran was afforded a VA examination in August 2016. The Veteran reported that he continued to have pain in his lower back. He used a TENS unit and had been getting injections. He reported that he experienced flare-ups of his lower back. The flare-ups happened once a week and lasted 15-20 minutes. He reported functional loss including pain with walking and lifting. Range of motion testing showed forward flexion to 80 degrees, extension to 0 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees. The examiner indicated that there was pain shown on examination, but pain did not cause functional loss. The Veteran was not able to perform repetitive motion testing. The examiner was unable to provide an opinion with regards to whether pain, weakness, fatigability, or incoordination result significantly limit functional ability over a period of time or during flare-ups. The Veteran was afforded a VA examination in June 2018. The Veteran reported increased back pain, including back spasms and muscles locking up. The Veteran reported that he was unable to run or bend down and also unable to lift heavy furniture. The examination showed forward flexion to 40 degrees and extension from 0 to 10 degrees. There was pain on examination. Pain resulted in functional loss. He had pain with all ranges of motion. The Veteran did not have additional limitation of motion with repetitive use testing. The examiner was unable to determine whether pain resulted in functional loss over time or with flare-ups. In February 2020, a VA examiner provided a medical opinion about functional loss of the lumbar spine due to pain and flare-ups. The examiner opined that the Veteran has forward flexion of the lumbar spine limited to 30 degrees during flare-ups. The evidence shows forward flexion of the lumbar spine to 30 degrees, at worst, during flare-ups. His August 2016 VA examinations noted flare-ups on a weekly basis. Considering the evidence of weekly flare-ups and the February 2020 opinion, the evidence shows forward flexion of the lumbar spine limited to 30 degrees, at worst. The evidence supports the assignment of a 40 percent rating, but no higher, throughout the rating period. The Board finds that the criteria for a rating in excess of 40 percent for the service-connected lumbar spine disability have not been met at any time during the rating period. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a, DCs 5235-5243. A 50 percent rating is not warranted in this case, as the evidence does not contain any findings of unfavorable ankylosis of the thoracolumbar spine. Additionally, the Board notes that the Veteran's representative has argued that his symptoms entitle him to an extraschedular rating for his lumbar spine disability. See June 2020 Brief. VA's duty to maximize benefits requires it to exhaust all schedular alternatives for rating a disability before the extraschedular analysis is triggered. Morgan v. Wilkie, 31 Vet. App. 162, 164 (2019). As a higher schedular evaluation for his service-connected lumbar spine disability is available, further consideration of an extraschedular evaluation is not warranted. (Continued on the next page) The criteria for a rating in excess of 40 percent based upon incapacitating episodes of intervertebral disc syndrome are not met. The evidence does not show that the Veteran had physician-prescribed bedrest due to his lumbar spine disability. See 38 C.F.R. § 4.71a, DC 5243. The Veteran has been separately service-connected for sciatic nerve radiculopathy of the right leg. The rating assigned for sciatic radiculopathy is not before the Board at this time. There are no other findings of neurological manifestations associated with the Veteran's lumbar spine disability which warrant separate ratings. A.M. CLARK Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Catherine Cykowski 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.