Citation Nr: 22013646 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 12-27 386 DATE: March 10, 2022 ORDER Entitlement to an initial disability rating of 40 percent, but no higher, for service-connected degenerative disc disease, degenerative arthritis, and stenosis of the lumbar spine (a lumbar spine disability) is granted for the entire appeal period, subject to the laws and regulations governing the award of monetary benefits. FINDING OF FACT For the entire initial rating period, the Veteran's service-connected lumbar spine disability more nearly approximates painful limitation of forward flexion to 30 degrees or less or favorable ankylosis, but is not characteristic of symptoms akin to unfavorable ankylosis. CONCLUSION OF LAW The criteria for entitlement to an initial 40 percent rating, but no higher, for the service-connected lumbar spine disability have been met for the entire appeal period. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.59, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1998 to September 2002. This appeal to the Board of Veteran's Appeals (Board) arose from a May 2015 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). During the current appeal, he testified at a hearing before a Veterans Law Judge (VLJ) in December 2019. A transcript of the hearing is associated with the file. The law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7102; 38 C.F.R. § 20.707. Here, the Board notified the Veteran by letter of the unavailability of the VLJ who presided over the December 2019 hearing, the opportunity to decide whether he wanted another hearing before another VLJ, and the need to respond within 30 days of the date of the letter or the Board would assume he does not want a hearing and proceed accordingly. See March 2021 BVA Letter. As he did not respond within the applicable time period, the Board will proceed with the appeal. During the current appeal, the Board remanded this appeal several times for further evidentiary development. In November 2020, the AOJ awarded a 40 percent rating for the Veteran's lumbar spine disability from November 12, 2020. Because the maximum benefit was not granted at any time during the pendency of the appeal period, the issue of entitlement to a higher evaluation remains on appeal, as does the issue of entitlement to an initial rating greater than 10 percent prior to that date. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran's lumbar spine condition is evaluated under Diagnostic Code (DC) 5242 (degenerative arthritis). During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). Therefore, when applicable, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Regarding the change made to DC 5242, it now also evaluates degenerative disc disease other than intervertebral disc syndrome (IVDS). Nonetheless, it is still evaluated under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula, a 20 percent rating requires limited forward flexion greater than 30 degrees but not greater than 60 degrees; or the combined range of motion is not greater than 120 degrees (the maximum combined range of motion being 240 degrees); or if there is either (1) muscle spasm or (2) guarding severe enough to result in abnormal gait or abnormal spinal contour, e.g., scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating requires limited forward flexion is to 30 degrees or less; or, there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine; and 100 percent for unfavorable ankylosis of the entire spine. At a March 2010 VA examination, the Veteran reported that his back pain worsened with weather changes and that he experienced severe flare-ups one to two times a year, which lasted for one to two weeks and which resulted in an inability to function. Range of motion (ROM) was limited by more than 50 percent during his flare-ups. He was limited to a few hours of standing. He shared that there were days he could not put his shoes on due to limited bending. Forward flexion was 70 degrees with pain. Repetitive motion testing increased his back pain but did not decrease ROM. ROM was limited by pain. There was no evidence of fatigue, weakness, or lack of endurance following repetitive testing. On the May 2014 VA examination, the Veteran reported having to go to the emergency room (ER) due to significant back pain. He experienced flare-ups brought on by weather changes as well as prolonged sitting and standing. He reported spasms and stiffness during his flare-ups. Forward flexion was 90 degrees with pain. Less movement than normal and pain on movement contributed to his disability. The examiner did not estimate limitation of ROM or assess level of functional loss during flare-ups because the Veteran was not having a flare-up then. At the December 2019 hearing, the Veteran shared not being able to move during his flare-ups and having to go to the ER to receive an injection. His spouse reported witnessing the flare-ups happening "at least a handful of times a year." On the November 2020 VA examination, the Veteran described being "incapacitated" while experiencing a flare-up. He was limited in standing, sitting, bending, lifting, carrying, and walking. Forward flexion was 50 degrees with pain. Pain caused functional loss. Pain significantly limited functional ability after repetitive use and during flare-ups. Estimated forward flexion after repetitive use over time was 25 degrees. Estimated forward flexion during flare-ups was 5 degrees. Disturbance of locomotion, interference with sitting and standing contributed to his disability. There was evidence of pain with weightbearing and non-weightbearing. Passive ROM testing could not be performed or was not medically appropriate. On the December 2021 VA examination, the Veteran shared experiencing severe flare-ups approximately two times a month. They lasted the entire day, precipitated by running, repeated lifting, bending, and prolonged standing. He stated that there were days that he could not move at all. Forward flexion was 45 degrees with pain. Passive ROM was the same as active ROM and there was evidence of pain. Pain significantly limited functional ability after repetitive use over time and during flare-ups. Estimated forward flexion after repetitive use was 20 degrees. Estimated forward flexion during flare-ups was 15 degrees. After a through consideration of the evidence of the record, the Board finds that, for the entire initial rating period, which includes the period prior to November 12, 2020 and from that date, the Veteran's symptoms are of the duration and severity contemplated by the 40 percent rating criteria. The Veteran has consistently stated that his low back flare-ups result in his inability to move or bend. The severity of his low back pain caused him to visit the ER multiple times. The Board finds that his symptoms to be more akin to forward flexion 30 degrees or less, or favorable ankylosis. See Chavis v. McDonough, 34 Vet. App. 1 (2021) (the ankylosis requirement in 38 C.F.R. § 4.71a can be met with evidence of functional equivalent of ankylosis during a flare). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Thus, the 40 percent rating contemplates any episodes in which the Veteran's disability is so severe that he cannot move his back, which has been shown by the evidence. However, the next higher evaluation of 50 percent is not warranted. A 50 percent rating contemplates when the Veteran exhibits unfavorable ankylosis of the entire thoracolumbar spine. There has been no evidence to establish that the Veteran has unfavorable ankylosis. The Board notes that unfavorable ankylosis is defined as a condition in which the entire thoracolumbar spine is fixed in flexion or extension and results in one or more of the following: difficulty walking because of a limited line of vision; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dislocation; or neurologic symptoms due to nerve root stretching. Even when considering the effects of pain and other factors of functional loss, the medical evidence does not indicate that the Veteran's range of motion findings are anything akin to unfavorable ankylosis. Experiencing difficulties in prolonged standing, walking, bending, and getting out of bed is not an implication of unfavorable ankylosis, which requires the spine to be frozen in a position other than the neutral position of 0 degrees flexion. The Veteran has not contended, nor does the evidence indicate, that his limitations result in gastrointestinal symptoms, breathing difficulties, difficulty walking due to sight limitation, or neurological symptoms. There have been no assertions that his back has been stuck while bent over or was not able to return to standing position. Rather, the symptoms and limitations he experiences is adequately contemplated by the 40 percent rating contemplating favorable ankylosis. The Board has also considered whether a higher evaluation may be warranted due to incapacitating episodes associated with IVDS (DC 5243). However, the lay and medical evidence of record is against a finding that the Veteran has IVDS. Further, he is already receiving compensation for associated radiculopathy of his right lower extremity, and there have been no other neurological abnormalities found to be associated with his lumbar spine disability. As to whether referral to the Director of Compensation Service for extraschedular consideration, which was raised by the Veteran's representative in the January 2022 Informal Hearing Presentation (IHP), the Board notes that an extraschedular rating may be provided in exceptional cases. 38 C.F.R. § 3.321. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). The evidence in this case does not show that the Veteran experiences any exceptional symptoms not being contemplated by DC 5242. His service-connected lumbar spine disability has been manifested by limited range of motion regarding flexion and symptoms of painful motion. This symptomatology is incorporated and contemplated by the schedular rating criteria. The Board determines that, because the symptoms are incorporated and contemplated by the schedular rating criteria, referral for extraschedular consideration is not warranted. While the Veteran has stated that he has missed work due to his service-connected lumbar spine disability, the current record shows that he still is employed full time. Therefore, at this time, the Board finds that the issue of entitlement to a TDIU rating has not been raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In summation, for the entire initial rating period, entitlement to a 40 percent rating, but no higher, is warranted for the Veteran's service-connected lumbar spine disability. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Middleton, Syesa T. 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.