Citation Nr: 22016314 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 11-13 962 DATE: March 21, 2022 ORDER Entitlement to a rating in excess of 10 percent for lumbar spinal stenosis, post-operative (low back disability), prior to April 14, 2011, is denied. Entitlement to a rating in excess of 20 percent for a low back disability beginning April 14, 2011, is denied. FINDINGS OF FACT 1. Prior to April 14, 2011, the Veteran's low back disability was not productive of forward flexion to 60 degrees or less; combined range of motion to 120 degrees or less; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. 2. Beginning April 14, 2011, the Veteran's low back disability was not productive of forward flexion to 30 degrees or less, or favorable ankylosis or its functional equivalent. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a low back disability prior to April 14, 2011, are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5237 (2020). 2. The criteria for a rating in excess of 20 percent for a low back disability beginning April 14, 2011, are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5237 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1977 to February 1993. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In a September 2019 decision, the Board denied increased ratings for the low back disability. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In July 2020, pursuant to a Joint Motion for Partial Remand (Joint Motion), the Court vacated the portion of the Board's decision that denied increased ratings for the low back disability. In February 2021 and October 2021, the Board remanded the claim for additional development. The case has since been returned to the Board. Increased Rating Low Back Disability In an October 2009 rating decision, the RO continued a 10 percent rating for the Veteran's low back disability. The Veteran appealed, seeking a rating in excess of 10 percent. In a June 2016 rating decision, the RO increased the rating for the low back disability to 20 percent effective April 14, 2011. Because the Veteran is presumed to seek the maximum available benefits, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In February 2009, the Veteran filed a claim for an increased rating for his service-connected low back disability, stating that it had gotten worse and that the cracked vertebrae had caused arthritis and deterioration. Records from the Social Security Administration (SSA), include private treatment records showing that the Veteran received an epidural injection in February 2008. In April 2009, electrodiagnostic testing revealed mild chronic radiculopathy at the left L5 nerve root, chronic moderate radiculopathy at the right L5 nerve root and to a lesser extent at the right L4 nerve root. A February 2009 VA neurosurgery consultation report indicated that the Veteran complained of low back pain radiating into both thighs, as well as bilateral foot numbness which was greater in the right foot than the left foot and was mainly at the top of the foot and the heels. He reported being unable to walk long distances due to back and leg pain. The assessment was chronic back pain with radicular symptoms, particularly in the right L5 distribution. A March 2009 report of a private neurosurgery evaluation indicated that the Veteran complained of radicular low back pain, with radiation of pain being worse in the right leg than the left. During a March 2009 VA examination, the Veteran reported taking medication for chronic low back pain, but denied having bowel or bladder symptoms. He complained of numbness and paresthesias, but no weakness of the legs or feet and no falls or unsteadiness. He related a history of fatigue, stiffness, weakness, spasms, and pain in the low back but no decreased motion. He related having constant, moderate sharp radiating low back pain with prolonged walking on a daily basis. It was noted that he did not have flare-ups of his spinal condition or incapacitating episodes. He did not use any ambulatory aids but occasionally used a motorized scooter when shopping. On examination, the Veteran's posture and head position were normal and his spine was symmetrical in appearance. His gait was normal, but his pace of stride was slow. There was no spinal gibbus, kyphosis, listing, lumbar lordosis, scoliosis, reverse lordosis or thoracolumbar ankylosis. There were no spams or guarding. He had no weakness, tenderness, or painful motion. There was no muscle spasm, localized tenderness or guarding severe enough to cause an abnormal gait or abnormal spinal contour. As to active motion, thoracolumbar flexion was normal, i.e., to 90 degrees. Right and left lateral flexion was also normal, i.e., to 30 degrees. Extension was limited to 20 degrees and bilateral rotation was limited to 25 degrees. The combined range of motion for the thoracolumbar spine was 220 degrees. There was objective evidence of pain with active motion. There was objective evidence of pain following repetitive motion but no additional limitation of motion after three repetitions. He was able to walk on his heels and to dress and undress without difficulty. The diagnosis was radiologically documented lumbar spinal stenosis. The effect on his usual daily activities was mild as to performing chores, shopping, exercising, and participation in sports and recreation but none as to traveling, feeding, bathing, dressing, toileting, or grooming. A June 2009 report of a private neurosurgery evaluation indicated that the Veteran was still having very severe lumbar stenosis and neurogenic claudication. He could only walk 400 yards before having to stop and rest. There was a discussion of him having a lumbar laminectomy from L2 to L5 with non-instrumented fusion. He requested that the surgery be performed in August 2009. During a September 2009 VA examination for a hiatal hernia, the Veteran reported that he had been self-employed in construction, but had retired in 2007 because of medical problems. It was reported that he had had back surgery on August 10, 2009. During an April 14, 2011, VA examination, the Veteran reported that X-rays at service discharge had revealed "several cracked" vertebrae. After service he been self-employed for a while as a handyman, but he could not do ladder work or heavy lifting. In about 2000, he stated that he began selling sunrooms, which he did for 3 to 5 years but was only able to continue this after his first back surgery and physical therapy. He stated that he stopped working in 2008 and applied for SSA disability benefits, which he received. He stated that his current treatment included oral medications, epidural steroidal injections, physical therapy, and use of a TENS unit. As to intervertebral disc syndrome (IVDS), it was reported that he had two incapacitating episodes in the last 12 months with a duration of 1 to 2 days. Other symptoms of disc disease were stiffness, limitation of motion, back pain radiating down his legs, as well as limited motion, weakness, paresthesias, and numbness of his legs. The Veteran reported having severe flare-ups every 3 to 4 months lasting 1 to 2 days during which he was unable to get out of bed. On examination, the Veteran's gait was slow and antalgic. Strength was 4/5 in the quadriceps and hamstrings, bilaterally, and there was no obvious atrophy. There was tenderness, guarding, and spasm of the paraspinous muscles throughout the entire length of his spine. Straight leg raising was positive, bilaterally. There was no fracture of a vertebral body. Lumbar motion was limited to 45 degrees of flexion, 10 degrees of extension, and 30 degrees of rotation in each direction and lateral bending in each direction (for a combined total of 175 degrees of motion). He had pain at the extremes of each plane of motion. The examiner noted that throughout the examination process, the Veteran changed positions, from sitting to standing, frequently due to pain and stiffness. X-rays revealed no evidence of compression fracture or spondylolisthesis but there was mild to moderate dextroscoliosis and almost diffuse moderate to marked spurring. There was vacuum phenomena degenerative disc disease (DDD) at L5-S1, and reactive bony sclerosis at the right sacroiliac joint. The diagnosis was lumbar spinal stenosis with radiculopathy. The examiner reported that the Veteran was unemployable, and that he had decreased mobility, problems with lifting and carrying, lack of stamina, weakness or fatigue, decreased strength, and lower extremity pain. As to the effect on the usual daily activities, the Veteran could do basic activities of daily living but his ability to perform household chores was severely impaired. During a July 2016 VA examination, the Veteran reported that his spinal condition had worsened since his examination in 2011. He stated that in the past he had multiple epidural steroidal injections, two radioablation procedures, and had been told he would need further surgery in the form of spinal fusion. He had no bowel or bladder incontinence. He stated that after military service, he had worked as a handyman, and as a city employee but was now fully retired. The Veteran reported having flare-ups, particularly if he picked up his 40-lb. granddaughter. He stated that it was difficult for him to pick up things, like groceries, or moving things like a table. On examination, the Veteran had decreased thoracolumbar motion in all planes. Thoracolumbar flexion was to 70 degrees, extension was to 10 degrees, right and left lateral flexion were to 25 degrees, right lateral rotation was to 20 degrees, and left lateral rotation was to 25 degrees (for a combined total of 175 degrees). He had pain on extension. There was mild tenderness with palpation of the lumbar paraspinal muscles as well as moderate tenderness with palpation of the right sacro-iliac region. He was able to perform repetitive use testing with at least three repetitions but there was no additional loss of function or range of motion after three repetitions. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The examination was conducted during a flare-up, but pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flareups. He did not have muscle spasms or guarding, although there was localized tenderness which did not result in abnormal gait or abnormal spinal contour. The examiner reported that the Veteran had bilateral sciatic neuropathy which was moderate in the right lower extremity and mild in the left lower extremity. He had IVDS but no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. He did not use any assistive device as a means of locomotion. The examiner commented that the Veteran was well-developed gentleman, and stood with a slight forward stoop, and walked slowly. The examiner reported that X-rays had documented arthritis but there was no thoracic vertebral fracture with loss of 50 percent or more of height. Also, the back condition negatively impacted the Veteran's ability to perform occupational tasks that required frequent lifting, stooping, climbing, or prolonged sitting/standing. During a May 2017 VA examination, the Veteran reported that since his last rating evaluation, he had been undergoing injections from a pain management clinic but remained in pain. He did not report having flare-ups but stated that he had difficulty walking on hard surfaces. On examination he had decreased thoracolumbar motion in all planes. Thoracolumbar flexion was to 90 degrees, extension was to 15 degrees, right and left lateral flexion were to 15 degrees, right lateral rotation was to 25 degrees, and left lateral rotation was to 30 degrees (for a combined total of 190 degrees). He had pain on extension, and bilateral lateral flexion. There was no pain on weight-bearing. There was no objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. He was able to perform repetitive use testing with at least three repetitions but there was no additional loss of function or range of motion after three repetitions. He was examined immediately after repetitive use over time, but pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. There was no guarding or muscle spasm of the thoracolumbar spine. The examiner reported that the Veteran had bilateral radiculopathy affecting both sciatic nerves which was moderate in the right lower extremity and mild in the left lower extremity. There were no bowel or bladders problems. The examiner stated that the Veteran had IVDS but no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. It was noted that the Veteran regularly used a cane as an ambulatory aid and occasionally used a "Hoverround" both of which had been purchased by the Veteran due to balance issues. X-rays showed arthritis but there was no thoracic vertebral fracture with loss of 50 percent or more of height. As noted above, in a September 2019 decision, the Board denied the Veteran's claim for increased ratings for his low back disability. In the Joint Motion, the parties agreed that VA had failed to attempt to obtain private treatment records from providers that the Veteran had identified in a January 2019 letter. The parties also agreed that the Board failed to address evidence of flare-ups reported during the April 2011 VA examination. In February 2021, the Board remanded the claim for additional development, including an attempt to assist the Veteran in obtaining private treatment records, and an additional VA examination and medical opinion addressing the Veteran's reported flare-ups. In February 2021, the Agency of Original Jurisdiction (AOJ) sent the Veteran a letter requesting him identify the providers who had treated him for his back disability and to complete and return an authorization form so that VA could obtain treatment records on his behalf, including from providers previously identified. The letter was sent to the Veteran's address of record and was not returned from the United States Postal Service (USPS) as undeliverable. The Veteran did not respond to the letter. Therefore, the VA's duty to assist him in this regard has been satisfied. An additional VA examination was conducted in July 2021. The Veteran reported that his low back disability had progressively worsened since he was injured during service. He stated that he had flare-ups four to six times per month, which lasted two to three days. Flare-ups involved pain, swelling, numbness and tingling in his legs, were precipitated by standing and leaning over or overuse and alleviated by rest, medication, and stretching. He described flare-ups as moderate and involving pain with activity. On examination, active range of motion of the thoracolumbar spine was limited to 82 degrees of flexion, and 22 degrees of extension. He had full range of bilateral lateral flexion to 30 degrees and lateral rotation to 30 degrees. The combined range of motion was limited to 224 degrees. There was no additional loss of function or range of motion after three repetitions. He had pain in all planes of motion. Passive range of motion testing was not performed because it was medically contraindicated and not medically advisable. Pain was noted with active motion but did not result in or cause functional loss. There was no evidence of localized tenderness or pain on palpation, guarding, or muscle spasm. The examiner noted that pain resulted in interference with sitting and standing. The examiner indicated that the Veteran was not being examined after repeated use over time or during a flare-up and that the evidence did not suggest pain, fatigability, weakness, lack of endurance, or incoordination significantly limited functional ability during flare-ups or with repeated use over time. The examiner indicated that the Veteran had bilateral radiculopathy involving the sciatic nerve, but no other neurologic abnormalities associated with the lumbar spine. There was no ankylosis. The examiner noted that the optimal work environment for the Veteran would not require prolonged sitting, lifting, carrying, or bending and would allow for frequent position changes. In October 2021, the Board remanded the claim for additional development, noting that the July 2021 VA examiner failed to consider the Veteran's reported flare-ups during his April 2011, July 2016, and May 2017 VA examinations, and failed to provide an estimate, if at all possible, of any additional impairment due to flare-ups based on other evidence of record, if providing a specific measurement based on direct observation was not possible. The Board also noted internal inconsistencies in the July 2021 VA examination report. For example, the examiner noted that the Veteran had functional impairment described as "pain with activity" but indicated that symptoms did not significantly limit functional ability during flare-ups or with repeated use over time. Furthermore, during the April 2011 VA examination, the Veteran reported that functional impairment during flare-ups rendered him unable to get out of bed. During a November 2021 VA examination, the Veteran reported experiencing constant back pain extending to his neck and radiating pain shooting down his right leg into his foot and into his left leg. He stated that his pain was usually 5-10/10 and was current flared to 10/10 due to driving 49 minutes on a bumpy road. He stated that he was very limited in his ability to walk distances and used a rollator. He stated that on a good day he could not walk more than 1/4 mile using a walker and that pain limited his ability to sit more than 30 minutes to one hour. Pain also limited his ability to bend over to brush his teeth or lift items, and that his balance was impaired in his right lower extremity. His wife stated that he fell twice in the past year. During a full flare-up, he stated that he could not do anything and was unable to attend his grandchildren's games because he could not walk up the bleachers or sit in a folding chair for 30 minutes. He also reported exacerbation of pain associated with cold climate at outdoor games. The Veteran stated that he had flare-ups several times weekly, which were severe with pain 10/10 on the pain scale. He stated that flare-ups lasted the remainder of the day and were precipitated by bending, walking, prolonged sitting, car trips, and sometimes nothing. He stated that flare-ups were alleviated by medication and lying flat. On examination, active range of motion of the thoracolumbar spine was limited to 45 degrees of flexion; 0 degrees of extension; 10 degrees of right lateral flexion; 10 degrees of left lateral flexion; 15 degrees of right lateral rotation; and 15 degrees of left lateral rotation. The combined range of motion was 95 degrees. The examiner noted that pain limited forward flexion beyond 40 degrees and right and left lateral flexion beyond 5 degrees. After three repetitions, there was no additional loss of function or range of motion. Passive range of motion was not performed as it was medically contraindicated. The examiner indicated that there was evidence of pain with weight-bearing and active motion and that pain limited bending, squatting, lifting, kneeling, prolonged sitting more than 30 minutes, standing more than 30 minutes, and walking more than 1/4 mile. There was objective evidence of diffuse spinal tenderness, which was noted to be severe. The examiner indicated that the Veteran was not being examined immediately after repeated use over time but that the evidence indicated that pain significantly limited his functional ability with repeated use over time. The examiner indicated that the Veteran was being examined during a flare-up and that the evidence indicated that pain, fatigability, weakness, lack of endurance, and incoordination significantly limited functional ability with flare-up. As the Veteran was being examined during a flare-up, the examiner noted the range of motion testing observed as described above. The examiner indicated that the Veteran had localized tenderness and guarding that did not result in abnormal gait or abnormal spinal contour. Factors that contributed to disability included disturbance of locomotion, instability of station, interference with sitting, interference with standing, weakened movement, deformity, and atrophy of disuse. The examiner noted that the Veteran had neurogenic claudication of the sciatic nerve due to severe spinal stenosis, but no other neurologic abnormalities. There was no ankylosis of the spine. The examiner noted that the Veteran had IVDS but did not have any incapacitating episodes requiring bed rest prescribed by a physician in the past 12 months. It was noted that the Veteran regularly used a walker. Regarding the Veteran's past reports of flare-ups during the April 2011 and July 2021 VA examinations, the examiner stated that additional range of motion loss during flare-ups was not applicable as the Veteran was currently experiencing a low back pain flare-up. The examiner noted that during a full flare-up, he could not do anything. His wife stated that during a flare-up, he could not go to any of his grandchildren's sports games because he could not walk up the bleachers. During flare-ups, he was unable to go boating, to the pool, and could not maneuver steps to the basement. In this case, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent for his low back disability prior to April 14, 2011. The March 2009 VA examination indicated that he had full range of flexion to 90 degrees and that combined range of motion was only limited to 220 degrees. Furthermore, the Veteran denied experiencing any flare-ups or incapacitating episodes. Although the Veteran reported having constant, moderate sharp radiating low back pain with prolonged walking on a daily basis, he denied experiencing any decreased motion in his thoracolumbar spine. In addition, the evidence did not indicate that he had muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Therefore, a rating in excess of 10 percent is not warranted under Diagnostic Code 5237. Furthermore, beginning April 14, 2011, the Board finds that the Veteran is not entitled to a rating in excess of 20 percent for his low back disability. At worst, forward flexion was limited to 45 degrees with pain beginning at 40 degrees. The November 2021 VA examiner indicated that those measurements were taken during a flare-up and were consistent with his reports of flare-up during the April 2011 VA examination. There was also no evidence of favorable or unfavorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 5. The Board has also considered the applicability of the Formula for Rating IVDS Based on Incapacitating Episodes. Prior to April 14, 2011, the Veteran denied having any incapacitating episodes of IVDS requiring bed rest prescribed by a physician. During the April 14, 2011, VA examination, he reported that he experienced flare-ups every three to four months for one to two days where he could not get out of bed, i.e., approximately three to eight days during a 12-month period. He did not indicate whether bedrest was prescribed by a physician; however, even so, his reported symptoms were less than a total duration required for a higher 40 percent rating, i.e. at least two weeks during a 12-month period. Furthermore, during the July 2016, May 2017, and December 2021, it was noted that he did not have incapacitating episodes requiring bed rest prescribed by a physician. Therefore, the Formula for Rating IVDS does not provide a basis for any higher ratings. Regarding neurologic abnormalities, the Veteran receives separate compensable ratings for radiculopathy of the right and left lower extremities. He has not requested higher ratings for those disabilities or appealed the rating decisions that granted service connection for those disabilities. Therefore, those issues are not before the Board. The evidence does not indicate that he has any other neurologic abnormalities associated with his low back disability. Finally, the Board has considered the effects of repeated use over time and flare-ups in light of the Court's holdings in Correia and Sharp. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this case, as noted above, the claim was remanded for an additional VA examination to address functional impairment during flare-ups, including as reported by the Veteran during previous VA examinations. During the November 2021 VA examination, the Veteran was examined during a flare-up and measurements taken with a goniometer indicated that forward flexion of the thoracolumbar spine was limited to 45 degrees with pain limiting functional ability beyond 40 degrees. The Board notes that in April 2011, he reported experiencing flare-ups every three to four months lasting one to two days where he could not get out of bed. The Veteran has also reported that his low back disability has progressively worsened over time. Therefore, it is reasonable to conclude that the November 2021 VA examination measurements taken during a flare-up are at least reflective of his symptomatology during the flare-ups he reported in April 2011. The Board also finds the measurements taken by a VA examiner using a goniometer more probative than the general descriptions provided by the Veteran and his wife. Therefore, the Board finds that any functional loss resulting from repeated use over time and during flare-ups is consistent with the 10 percent and 20 percent ratings assigned as discussed above. The Board notes that effective February 7, 2021, the rating criteria pertaining to musculoskeletal disabilities were revised. See 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). However, the rating criteria pertaining to the Veteran's service-connected low back disability were not substantively changed. In sum, the Board finds that the Veteran's symptomatology is consistent with a 10 percent rating prior to April 14, 2011, and a 20 percent rating beginning April 14, 2011. Higher ratings are not warranted for the low back disability. 38 C.F.R. § 4.71, Diagnostic Code 5237. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Mishalanie, 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.