Citation Nr: 21040730 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 14-27 712 DATE: July 6, 2021 ORDER An initial rating of 40 percent for degenerative disc disease lumbar spine with disc protection claimed as back pain status post-surgery (hereinafter back disability) is granted. FINDING OF FACT Throughout the appeal period, when considering functional impairment due to factors such as pain, weakness, fatigability, incoordination, pain on movement, and flare-ups, the Veteran's back disability is more akin to impairment associated with forward flexion to 30 degrees or less. CONCLUSION OF LAW The criteria for an initial rating of 40 percent for a back disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Army from October 2006 to April 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2016, the Veteran testified in support of this appeal during a hearing held at the Seattle, Washington RO before the undersigned Veterans Law Judge. In February 2018 and March 2021, the Board remanded this matter for further development. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Whereas here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for different periods of time, based on the facts found is required. Fenderson v. West, 12 Vet. App. 119 (1999). Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability have exhibited signs or symptoms that would warrant different ratings under the rating criteria. The Veteran's back disability is rated as 20 percent disabling under Diagnostic Code 5243. He contends a higher initial rating is warranted. For the following reasons, the Board agrees. 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. 38 C.F.R. § 4.71a, General Rating Formula for Disease and Injuries of the Spine. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. 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. Unfavorable ankylosis is defined as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of 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. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always considered favorable ankylosis. Id. 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; 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."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran has undergone multiple VA examinations for his back disability. In March 2012, prior to his discharge from service, the Veteran underwent his first VA examination. He reported his back disability limited his ability to walk, estimated that he can walk up to 200 yards, but it takes him 20 minutes. The Veteran also reported that he had experienced falls, stiffness, fatigue, spasms and decreased motion. He experienced four days of incapacitating episodes in 2011 and two days of incapacitating episodes in January 2012. His overall functional impairments were stand, walk, lift, bend, jump, bath, and dress. The examiner found the Veteran's posture to be normal, but he walked with an antalgic gait due to his back disability. The Veteran's walk was observed as abnormal due to the Veteran's back which the examiner described as difficult. Range of motion testing was performed and the Veteran's exhibited 40 degrees of forward flexion on initial range of motion and after repetitive testing. In April 2015, the Veteran underwent another examination for his back disability. At this examination the Veteran reported flare-ups that interfere with bending, sitting, walking, and standing. On range of motion testing he exhibited forward flexion to 65 degrees with pain starting at 65 degrees. No change in range of motion was found after repetitive use. The Veteran exhibited functional loss and functional impairment of less movement than normal and pain on movement after repetitive use. The examiner found the Veteran to have localized tenderness or pain to palpitation for joints and/or soft tissue of the thoracolumbar spine which is further described as tenderness in the soft tissue directly lateral to the lumbar scar. No guarding or muscle spasm of the lumbar spine was found. The examiner found contributing factors of pain, weakness, fatigability, and/or incoordination and there is additional limitation of functional ability of the thoracolumbar spine during flare-ups or repeated use over time. The examiner also estimated that the degree of range of motion loss during pain on use or flare-ups to be approximately 10 degrees. However, no rationale was provided as to how the examiner reached the conclusion that flare-ups reduce the Veteran's range of motion by 10 degrees. As such, the Board affords little probative weight to the April 2015 examiner's estimation of range of motion during a flare-up. After remand the Veteran underwent another VA examination in January 2019. The Veteran reported improvement in his back pain and denied any flare-ups. He rated his back pain as a four out of ten and reported functional impairments of not being able to lift 50 pounds and increased pain if he sits more than one to two hours without a stretch break. On range of motion testing he exhibited 80 degrees of forward flexion and the examiner found that pain did not result in/cause functional loss. Objective evidence of localized tenderness along the lumbar spine consistent with degenerative disc disease was noted by the examiner. The examiner found no additional loss of function or range of motion after three repetitions. The Veteran did report that after repetitive use he experienced loss of range of motion that is variable depending on how strenuously his back was used. At worst, the Veteran reported he cannot move due to pain, and other times the range of motion loss was minimal. However, the examiner failed to provide an estimate of functional loss in terms of range of motion. The examiner also found no ankylosis. As the examiner failed to provide estimates of functional loss in terms of range of motion after repetitive use, the Board affords less probative weight to the range of motion findings from this examination. After a second remand, the Veteran underwent a VA examination in April 2021. At this examination the Veteran reported that his back pain varies from a three to four out of ten in the morning to seven out of ten at the end of the day. He described his back pain as stiff in the morning. The endorsed experiencing flare-ups that last one to three days. His most recent flare-up was the week before the examination which required a day of bed rest. He reported he experiences flare-ups every one to two months. The Veteran described his flare-ups as stiffness and increased pain and that during a flare-up he is unable to crawl or get up off the floor. The Veteran usually treats his flare-ups with bed rest, but the examiner found no prescriptions for bed rest from a provider. The Veteran's functional impairment during a flare-up was described as an inability to lift 50 pounds and crawling and getting up from the floor is difficult. Range of motion testing was conducted, and the Veteran exhibited 60 degrees of forward flexion. There is evidence of pain on active motion, but the examiner noted that the pain did not result in or cause functional loss. The examiner found objective evidence of localized tenderness in the lower lumbar spine that is consistent with Intervertebral Disc Syndrome. No additional loss was observed after three repetitions. The examiner estimated the Veteran's range of motion during a flare-up to be 45 degrees of flexion. The examiner reached this conclusion after referencing a 2013 medical note that stated that Veteran's lumbar range of motion to be 50 percent of normal. The examiner found no additional contributing factors of the Veteran's back disability. VA treatment records have been associated with the claims file that document the extent of the Veteran's back disability. In a May 2013 physical medicine rehab consult, the Veteran reported his back pain ranging from four to eight out ten and bending and lifting makes the symptoms worse. In August 2013, the Veteran reported to the walk-in clinic with complaints of ongoing low back pain. It was noted that he was scheduled for an injection from the pain clinic the next month. The Veteran stated that his pain had increased the past few days. In September 2013, the Veteran received a steroid epidural injection in his spine. At this appointment the Veteran described his back pain as "stiff in the morning." At his May 2016 hearing, the Veteran provided testimony about his back disability. He testified that he could barely drive the thirty miles to school and has to stop twice in order to stretch. He also had to stop twice to stretch to travel the sixty miles from his home to his hearing. The Veteran testified that if he pushes to use his back for four to five hours, but then he has to rest on the couch or the bed for the remainder of the day. The Veteran also stated that he is partially incapacitated almost every day. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran is entitled to an initial rating of 40 percent. The Veteran initiated his claim in March 2012, and at his March 2012 examination he exhibited forward flexion to 40 degrees, four days of incapacitating episodes in 2011 and two days of incapacitating episodes in January 2012. He has consistently stated that he has incapacitating episodes of back pain, with him reporting at his most recent examination that he experiences these episodes every one to two months. The Veteran has also been found to have less movement than normal and pain on movement. Functional impairments of limited walking, standing, lifting, and bending have also been found. Based on all these considerations, the Board finds that throughout the appeal period a 40 percent evaluation is warranted based on functional loss. See Mitchell, 25 Vet. App. at 3843; DeLuca, 9 Vet. App. 20407. The Veteran's low back disability represents an increased symptomatology that roughly equates to limitation of motion to 30 degrees or less of forward flexion as required for the assignment of the next higher evaluation of 40 percent. A rating higher than 40 percent is not warranted. In order to receive a rating of 50 percent the Veteran would need to exhibit unfavorable ankylosis of the entire thoracolumbar spine. There is no evidence in the record that supports any ankylosis in the thoracolumbar spine. As such, a higher rating of 50 percent cannot be awarded. The Board has considered if a higher rating is available under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. Though the Veteran has reported bed rest, there is no evidence in the record that any of his bed rest was prescribed by a physician. Accordingly, a higher rating cannot be awarded under these criteria. (Continued on the next page) Accordingly, the Board finds that an initial rating of 40 percent for the Veteran's back disability is granted. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Chandeck, 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.