Citation Nr: 21041763 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 17-27 577 DATE: July 10, 2021 ORDER 1. Entitlement to a compensable initial rating for the lumbar spine disability from July 31, 1995, to April 29, 1999 is denied. 2. Entitlement to a 20 percent rating for the lumbar spine disability from October 2, 2006, but no earlier, is granted. FINDINGS OF FACT 1. Prior to April 29, 1999, the Veteran's lumbar spine disability did not result in slight limitation of motion. 2. Between April 29, 1999 and October 2, 2006, the Veteran's lumbar spine disability did not result in moderate limitation of motion; forward flexion less than 60 degrees; a combined range of motion of less than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. 3. Since October 2, 2006, the Veteran's lumbar spine disability has resulted in forward flexion of less than 60 degrees but greater than 30 degrees. CONCLUSIONS OF LAW 1. Prior to April 29, 1999, the criteria for a compensable rating for the Veteran's lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5295 (2000-2003). 2. For the period between April 29, 1999 and October 2, 2006, the criteria for a rating in excess of 10 percent for the Veteran's lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (West 2002 & 2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5295-5292 (2000-2003) & Diagnostic Code 5237 (2003-2020). 3. Since October 2, 2006, but no earlier, the criteria for a 20 percent rating for the Veteran's lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107 (West 2002 & 2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5295-5292 (2000-2003) & Diagnostic Code 5237 (2003-2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from May 1982 to July 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO), which granted an earlier effective date of July 31, 1995 for service connection for the lumbar spine disability. The RO awarded a noncompensable rating effective July 31, 1995, and a 10 percent disability rating effective April 29, 1999. The Veteran then disagreed with the ratings assigned for the lumbar spine disability and certified her appeal to the Board. In August 2019, the Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge. A transcript has been associated with the record. At the hearing, she indicated that she was seeking an initial 20 percent rating prior to January 31, 2017. In February 2020, the Board remanded this matter for further development. The Board notes that the issue of entitlement to service connection for obstructive sleep apnea (OSA) was previously remanded. A June 2020 rating decision granted service connection for OSA and awarded a 50 percent disability rating effective April 8, 2015. As this represents a full grant of the benefits sought, the issue is no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The record contains no indication that the Veteran has disagreed with the initial rating or effective date assigned, thus, those matters are not in appellate status. See Grantham, 114 F. 3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if that disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Where VA's adjudication of the claim for increase is lengthy, and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different, or "staged," ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. § § 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2017). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id. (quoting 38 C.F.R. § 4.40). 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). Prior to September 23, 2002 Of note, the criteria for evaluating spine disabilities were amended twice during the pendency of this appeal, with changes effective September 23, 2002 and September 26, 2003. If a law or regulation changes during the course of an appeal, the version more favorable to the appellant will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003 & 3-2000. Ratings were available for ankylosis (complete bony fixation) of the entire spine and of the lumbar spine at DCs 5286 and 5289, dependent upon whether such fixation was at a favorable or unfavorable angle. However, as this Veteran is not shown to have bony fixation of the entire spine or the lumbar spine at any point during this appeal, these prior ratings based on ankylosis are not relevant in consideration of this matter. Prior to the September 2002 regulation change, limitation of motion of the lumbar spine was rated under DC 5292 with slight limitation assigned a 10 percent disability rating, moderate limitation a 20 percent disability rating, and severe limitation a 40 percent disability rating. Terms such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. The rating for intervertebral disc syndrome (IVDS) in effect prior to September 23, 2002, was identified by DC 5293 and assigned a 60 percent rating for pronounced IVDS with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm and absent ankle jerk or other neurological findings appropriate to the site of the diseased disc and little intermittent relief. A 40 percent rating was assigned for severe intervertebral disc syndrome, with recurrent attacks, with intermittent relief, a 20 percent rating when moderate with recurrent attacks, a 10 percent rating when mild, and a noncompensable rating for postoperative, cured. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (effective prior to September 23, 2002). Prior to September 23, 2002, the record does not reflect a diagnosis of IVDS or symptoms compatible with sciatic neuropathy, thus a rating for IVDS is not warranted under DC 5293 for this period. In December 1995, the Veteran underwent a general VA examination. The examiner noted full range of motion of the lumbar spine, without any loss of function or pain. Motor and sensory testing were normal, with no evidence of muscle atrophy or spasms. In December 1997, a treatment provider documented the Veteran's reports of constant low back pain after a strain while vacuuming. She noted that the pain was aggravated by physical activity. In April 1999, the Veteran was afforded another general VA examination. The report noted flexion to 70 degrees, with a combined range of motion of 205 degrees. The examiner further indicated no loss of function and that the Veteran could complete physical activity without complaint. In August 2002, the Veteran visited the emergency room due to lower back pain following a back strain while lifting a box. The treatment provider noted a muscle spasm, with no neurological deficits. The Board finds that a compensable rating is not warranted prior to April 29, 1999. Indeed, the December 1995 examiner noted full range of motion of the lumbar spine. The Board acknowledges the Veteran's reports of lower back pain following an isolated strain. However, there is no evidence reflecting limitation of motion of the lumbar spine during that period. Furthermore, for the period between April 29, 1999 and September 23, 2002, the Veteran's lumbar spine disability warrants no more than a 10 percent rating based upon the limitation of motion shown. Specifically, the April 1999 VA examiner noted flexion to 70 degrees, with a combined range of motion of 205 degrees. Such is indicative of slight limitation of motion under DC 5292. The Board does not find that the Veteran experienced moderate limitation of motion, as she demonstrated nearly complete range of motion of the lumbar spine upon testing and no further limitation was observed thereafter. Thus, increased ratings for the lumbar spine disability are not warranted for this period of time. 38 C.F.R. § 4.71a, DC 5292 (in effect prior to September 23, 2002). Between September 23, 2002 and September 26, 2003 Diagnostic Code 5292 for ratings based on limitation of motion of the lumbar spine remained unchanged between the September 2002 and the September 2003 and the discussion above remains applicable during this period. However, the criteria to evaluate IVDS were changed during this period. IVDS (whether preoperative or postoperative) was to be rated either on the total duration of incapacitating episodes over the past 12 months or by combining under § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method resulted in the higher evaluation. With incapacitating episodes having a total duration of at least six weeks during the prior 12 months, a 60 percent rating was assigned, total duration of at least 4 weeks but less than 6 weeks a 40 percent rating was assigned, total duration of at least 2 weeks but less than 4 weeks a 20 percent rating was assigned, and with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months a 10 percent rating was assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (effective prior to September 26, 2003). For the purpose of applying DC 5293, 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. The evidence continues to show no diagnosis of IVDS and, moreover, does not reflect incapacitating episodes with bed rest prescribed by a physician at any time. Thus, an increased rating based on incapacitating episodes is not appropriate. With regard to the orthopedic manifestation of lumbar spine disability, the rating based on limitation of motion remains at 10 percent for slight limitation, as there is no evidence to show an increase to moderate limitation of motion during this period. Since September 26, 2003 Subsequent to the September 2003 regulation change, the Veteran's lumbar spine disability has been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. 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. 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. In November 2004, the Veteran visited the emergency room due to back spasms and pain after she tried to move her refrigerator. She was diagnosed with a pelvic muscle strain. In correspondence dated October 2, 2006, Dr. G.K. indicated that the Veteran's flexion of the lumbar spine was limited to 40 degrees, with extension to 21 degrees. Left lateral flexion was to 10 degrees, with right lateral flexion to 11 degrees. Dr. G.K. further noted the Veteran's reports of dull back pain, which was exacerbated by prolonged sitting and standing and impaired her ability to bend. A VA treatment record dated April 22, 2007, documented flexion of the lumbar spine to 80 degrees, with extension to 15 degrees. Bilateral flexion was to 20 degrees. A VA treatment record dated July 20, 2007, documented flexion of the lumbar spine to 60 degrees, with extension to 15 degrees. Left lateral flexion was to 30 degrees, with right lateral flexion to 20 degrees. In September 2007, the Veteran was afforded a VA examination for her spine. She reported that her lower back pain was stable at that time. The report noted no evidence of spasms, tenderness, pain with motion, weakness, guarding, or atrophy. Motor, sensory, and reflex testing of the lower extremities was normal upon examination. The Board has considered whether a lumbar spine disability rating in excess of 10 percent from September 26, 2003 is warranted. Considering all the evidence, including under the former regulations as discussed above, the Board finds that a 20 percent rating is warranted effective October 2, 2006 based upon forward flexion to 40 degrees at that time, as noted by Dr. G.K. However, the evidence does not reflect that a rating in excess of 10 percent is warranted prior to that time, as the Veteran did not exhibit forward flexion of the lumbar spine to 60 degrees or less, combined range of motion less than 120 degrees, nor muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour during that period. Furthermore, the evidence of record does not reflect moderate limitation of motion of the lumbar spine prior to October 2006 based upon the previous diagnostic criteria. In evaluating the Veteran's increased rating claim under DeLuca and Mitchell, supra, the Board acknowledges that the Veteran has reported pain and spasms, which were exacerbated by physical activity. However, the Board finds that any additional functional limitation caused by the Veteran's pain is contemplated by the 10 and 20 percent ratings currently assigned for the respective appeal periods. Indeed, the pertinent evidence has not revealed that her motion was limited to 60 degrees or less prior to October 2, 2006, nor to 30 degrees or less since that time as a result of pain, weakness, fatigability, incoordination, lack of endurance, or repetitive motion as to warrant a higher rating. Additionally, the evidence of record does not reflect that any additional functional limitation has resulted in ankyloses affecting the Veteran's lumbar spine at any time during the appeal. Therefore, the Board finds that increased ratings for either period are not warranted in this matter based on application of 38 C.F.R. §§ 4.40 and 4.45. The Board notes that, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination. However, as with DeLuca, guidance on how to evaluate flare-ups has not been particularly clear. Nevertheless, it is reasonable that flare-ups must be quantifiable and must result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flare-up must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. Here, the Veteran did not report flare-ups of the lumbar spine during the period on appeal. The Board notes that she experienced back spasms in November 2004. However, such symptomatology was precipitated by an isolated incident (moving her refrigerator). Indeed, since that time she has not reported any lower back flare-ups and stated that her condition was stable at the time of the September 2007 VA examination. Under 38 C.F.R. § 4.1, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. Here, there are no reports of flare-ups as to warrant a change in evaluation. Thus, the Board finds the examination reports of record are adequate for rating purposes and that higher disability ratings are not warranted, even when considering the functional effects of pain. Additionally, the Veteran did not demonstrate any evidence of ankylosis of the entire thoracolumbar spine, which would be required for an evaluation of 40 percent under the rating criteria. As noted above, the Board must consider any neurologic abnormalities associated with the spinal disability. The Veteran did not report any bladder or bowel impairment resulting from her low back disability during the period on appeal. The Board also notes that the Veteran has not been diagnosed with radiculopathy of either lower extremity. Furthermore, the record does not reflect any such symptomatology related to such the lower extremities. As such, separate ratings for such conditions are not warranted. In summary, the Board finds a 20 percent rating effective October 2, 2006, but no earlier, is warranted for the service-connected lumbar spine disability. As this is the specific rating sought by the Veteran, it is considered a full grant in that regard. The Veteran and her representative have not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). MICHAEL KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Erin J. Trojanowski, 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.