Citation Nr: 21041204 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-03 535 DATE: July 8, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for degenerative disc disease of the lumbar spine (low back disorder) prior to February 12, 2019 is denied. Entitlement to a disability rating of 20 percent, but not higher, for low back disorder, from February 12, 2019, to February 1, 2019, is granted. Entitlement to a disability rating in excess of 20 percent for low back disorder, from December 2, 2019, forward, is denied. FINDINGS OF FACT 1. Prior to February 12, 2019, the Veteran's low back disorder manifested in forward flexion limited to 80 degrees. 2. From February 12, 2019, forward, the Veteran's low back disorder manifested in forward flexion limited to 45 degrees. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for low back disorder prior to February 12, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.71a, Diagnostic Codes 5242-5243. 2. The criteria for a disability rating of 20 percent, but no higher, for low back disorder, from February 12, 2019 to December 1, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.71a, Diagnostic Codes 5242-5243. 3. The criteria for a disability rating in excess of 20 percent for low back disorder from December 2, 2019, forward, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.71a, Diagnostic Codes 5242-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1981 to January 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. In March 2019, the Board remanded this matter for further development. That development having been completed, this matter has returned to the Board for further appellate review. Rating decisions dated April 2019 and July 2019 granted separate compensable ratings for bilateral lower extremity radiculopathy effective February 12, 2019, as secondary to the Veteran's service-connected low back disorder. The Veteran has not provided any assertions of expressed any dissatisfaction with the ratings assigned for his bilateral lower extremity radiculopathy. Therefore, the Board will not address those ratings as part of the Veteran's claim for an increased rating for degenerative disc disease of the lumbar spine. A June 2020 rating decision granted an increased, 20 percent, rating for the Veteran's service-connected low back disorder, effective December 2, 2019. As this increase does not represent a full grant of benefits sought on appeal as concerning this issue, the claim for an increased disability rating remains pending before the Board. See A.B. v. Brown, 6 Vet. App., 35, 39 (1993) (the claimant is presumed to be seeking the highest possible rating for a disability unless he or she expressly indicates otherwise). Increased Rating VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id. The Schedule assigns Diagnostic Codes to individual disabilities. Diagnostic Codes provide rating criteria specific to a particular disability. If two Diagnostic Codes are applicable to the same disability, the Diagnostic Code that allows for the higher disability rating applies. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. The Schedule recognizes that a single disability may result from more than one distinct injury or disease; however, rating the same disability or its manifestation(s) under different Diagnostic Codes-a practice known as pyramiding-is prohibited. Id. & 38 C.F.R. § 4.14. 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 they are sufficient to warrant changes in the evaluations assignable under the applicable rating criteria. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). For increased-rating claims, where a claimant seeks a higher evaluation for a previously service-connected disability, it is the present level of disability that is of primary concern, and VA considers the level of disability for the period beginning one year prior to the claim for a higher rating. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); 38 C.F.R. § 3.400(o)(2). In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40; see Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) (holding that pain "must actually affect some aspect of 'the normal working movements of the body' [under] 38 C.F.R. § 4.40 in order to constitute functional loss" warranting a higher rating). With respect to disabilities of the joints, it must be considered whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. These provisions thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the provisions of 4.40 and 4.45 are not subsumed by the DC's applicable to the affected joint). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The regulations provide that back disabilities are rated 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, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). Diagnostic Code 5243 has been revised effective February 7, 2021. In this respect, Diagnostic Code 5243 now only applies when there is disc herniation with compression and/or irritation of the adjacent nerve root and Diagnostic Code 5242 is assigned for all other disc diagnoses. As will be explained below, there is no indication that the Veteran experienced incapacitating episodes which required prescribed bed rest. See 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes, Note (1) ("an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician"). Therefore, the Formula for Rating IVDS Based on Incapacitating Episodes does not provide a basis to assign an increased disability rating and the Board will evaluate the Veteran's lumbar spine disability under the general rating formula. The General Rating Formula for Diseases and Injuries of the Spine provides, in pertinent part, a 10 percent rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, the 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 height. 38 C.F.R. § 4.71a. A 20 percent rating 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 disability rating is provided for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. Id. Any associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are considered part and parcel of an injury to the spine and are to be evaluated separately under the appropriate diagnostic codes. 38 C.F.R. § 4.71a, Note (1). The above criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine. Id. This is because the criteria "are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine." 68 Fed. Reg. 51, 454, 51,455 (August 27, 2003) (Supplementary Information). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is from 0 to 90 degrees, extension is from 0 to 30 degrees, left and right lateral flexion are from 0 to 30 degrees, and left and right lateral rotation are from 0 to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (2). Unfavorable ankylosis is defined, in pertinent part, as "a condition in which the entire thoracolumbar spine is fixed in flexion or extension." Id., Note (5). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. The General Rating Formula also provides that associated neurologic abnormalities will be separately rated. See id., Note (1). As stated above, the Veteran is separately service-connected for radiculopathy of the bilateral lower extremities. The Veteran's low back disorder is rated as 10 percent disabling prior to December 2, 2019 and as 20 percent disabling thereafter under Diagnostic Code 5242-5243. 38 C.F.R. § 4.71a. See also 38 C.F.R. § 4.27 (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). Diagnostic Code 5242 pertains to degenerative arthritis. Diagnostic Code 5243 pertains to IVDS. During the pendency of the appeal, VA issued a final rule revising the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a. 85 Fed. Reg. 76,453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). The final rule went into effect February 7, 2021. A change in the rating criteria during an appeal period requires consideration of the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. The new rating criteria did not make any substantive changes to Diagnostic Code 5242. A May 2013 VA examination report reflects that the Veteran forward flexion was limited to 80 degrees, extension was limited to 25 degrees, right and left lateral flexion were limited to 30 degrees, right lateral rotation was limited to 25 degrees, and left lateral rotation was limited to 30 degrees. The examiner found no objective evidence of painful motion. The Veteran denied experiencing flare-ups of his low back disorder, and was able to perform repetitive-use testing without additional functional loss. There was mild left sided paraspinal tenderness to palpation. There was no radicular pain or any other signs or symptoms due to radiculopathy. The examiner indicated the Veteran did not have any incapacitating episodes over the past 12 months. See May 2013 Back Conditions Disability Benefits Questionnaire (DBQ). Throughout the appeal period, the Veteran has provided statements describing the nature and severity of his low back symptomatology. See April 2012 Statement in Support of Claim (reporting limited painless range of motion); February 2013 Statement in Support of Claim (reflecting increasing pain and requiring prescribed and over the counter medication for pain management); June 2014 Notice of Disagreement (stating he has pain and trouble lifting above shoulder height); January 2016 VA Form 9 (reporting pain, stiffness, and being uncomfortable after periods of sitting or standing). At the February 2019 hearing, the Veteran testified that he manages his pain with a topical cream. He stated that he experiences flare-ups of his low back disorder about 80 percent of the time, which is preceded by stooping, bending, kneeling, or trying to lift something. He further testified, and his wife corroborated, that during his flare-ups his range of motion is limited to less than half of what he is normally capable. The Veteran's wife also testified that the Veteran sometimes will be in and out of his massage chair all day to help alleviate his back pain. See February 2019 Hearing Transcript. The Veteran and his wife are competent to report observable symptomatology in the form of pain and decreased range of motion, as such are capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, the Veteran and his wife are credible in their reports of his low back symptomatology. See Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table) (holding that, in determining whether statements submitted by or on behalf of a claimant are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). A March 2019 VA examination report reflects the Veteran's forward flexion was limited to 60 degrees, extension was limited to 20 degrees, right and left lateral flexion were limited to 20 degrees, and right and left lateral rotation were limited to 10 degrees. Although the examiner noted the Veteran denied flare-ups, they also noted that bending, lifting, carrying, and prolonged sitting and standing increased his pain. The examiner also noted that the Veteran's additional functional loss after repetitive use and flare-ups was variable, with a worse case of the Veteran being unable to move due to pain and fatigue. The examiner found the Veteran had no episodes of acute signs or symptoms of IVDS which required bed rest in the past 12 months. See March 2019 Back Conditions DBQ. At a December 2019 VA examination, the Veteran's forward flexion was limited to 50 degrees, extension was limited to 10 degrees, right and left lateral flexion were limited to 15 degrees, and right and left lateral rotation were limited to 10 degrees. There was objective evidence of pain on range of motion testing, causing functional loss. The examiner noted that the examination was being conducted during a flare-up, with pain and fatigue limiting functional ability. The Veteran stated that during flare-ups he experienced a variable loss of range of motion, from minimal loss to not being able to move at all due to pain and fatigue. The examiner described the functional impact of the Veteran's low back disorder as limited bending, lifting, and eing unable to sit for a prolonged period of time. The examiner found the Veteran had no episodes of acute signs or symptoms of IVDS which required bed rest in the past 12 months. See December 2019 Back Conditions DBQ. Based on the foregoing, the Board finds that a rating in excess of 10 percent is not warranted prior to February 12, 2019. In this regard, the evidence does not show that the forward flexion of the Veteran's spine was ever limited to 60 degrees or less, or that he had muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Rather, the evidence shows the Veteran's forward flexion was, at worst, limited to 80 degrees. 38 C.F.R. § 4.71a. The Veteran stated he experienced pain and restricted physical activity, and, as stated above, the Board finds his statements competent and credible. Nevertheless, prior to February 12, 2019, the Veteran's pain and functional loss did not result in limited motion severe enough to warrant an increased rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) (holding that pain "must actually affect some aspect of 'the normal working movements of the body' [under] 38 C.F.R. § 4.40 in order to constitute functional loss" warranting a higher rating). Further, the Veteran's 10 percent disability rating considered his painful motion. The Board does find that an increased rating of 20 percent, but no higher, is warranted effective February 12, 2019. In this regard, the Veteran and his wife testified that the Veteran experienced flare-ups of his low back disorder the majority of the time, with his forward flexion being limited to approximately half of what he normally could achieve. As stated above, normal forward flexion of the spine if from 0 to 90 degrees, half of which is equal to 45 degrees. Given the Veteran and his wife's competent and credible testimony regarding the observable symptomatology of his low back disorder limiting his forward flexion to 45 degrees, the Board finds a 20 percent rating is warranted effective February 12, 2019, the date of the Board hearing. A rating in excess of 20 percent is not warranted at any point during the appellate period. In this regard, the evidence does not show that the forward flexion of the Veteran's lumbar spine was ever limited to 30 degrees or less, or that he had favorable ankylosis of the spine. Rather, the evidence shows the Veteran's forward flexion was, at worst, limited to 40 degrees and that there is no evidence of ankylosis. 38 C.F.R. § 4.71a, DC 5242. Further, as each VA examiner found that the Veteran had no episodes of acute signs or symptoms of IVDS which required bed rest in the past 12 months, DC 5243 does not provide a basis for a higher rating. The Board has also considered whether separate ratings are warranted for bilateral lower extremity radiculopathy prior to February 12, 2019. However, there was no evidence of lower extremity radiculopathy prior to February 12, 2019. As noted above, the March 2013 VA examiner found that the Veteran had no radicular pain or any other signs or symptoms due to radiculopathy. Thus, separate ratings are not warranted for bilateral lower extremity radiculopathy prior to February 12, 2019. In conclusion, a rating in excess of 10 percent is not warranted prior to February 12, 2019, and a rating in excess of 20 percent is not warranted thereafter. 38 C.F.R. § 4.71a. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. M. Stedman, 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.