Citation Nr: 22017444 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 18-08 347 DATE: March 25, 2022 ORDER Entitlement to an evaluation in excess of 20 percent for degenerative disc disease of the lumbosacral spine for the period from April 13, 2017 to February 3, 2020 is denied. Entitlement to an evaluation of 40 percent, but no higher, for degenerative disc disease of the lumbosacral spine for the period from February 4, 2020 to October 1, 2020 is granted. Entitlement to an evaluation in excess of 40 percent for degenerative disc disease of the lumbosacral spine for the period beginning October 2, 2020 is denied. FINDINGS OF FACT 1. For the period prior to February 4, 2020, the evidence of record does not show that the Veteran's degenerative disc disease of the lumbosacral spine resulted in functional limitation equivalent to forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire spine. Also, the evidence of record does not show that the Veteran has had incapacitating episodes due to IVDS having a total duration of at least 4 weeks but less than 6 weeks during a 12-month period prior to February 4, 2020. 2. Resolving reasonable doubt in the Veteran's favor, the Veteran's degenerative disc disease of the lumbosacral spine resulted in functional limitation equivalent to forward flexion of the thoracolumbar spine limited to 30 degrees or less for the period from February 4, 2020 to October 1, 2020. 3. The evidence of record does not show that the Veteran has had ankylosis of the thoracolumbar spine at any time during the period on appeal. 4. The evidence of record does not show that the Veteran has been having IVDS with incapacitating episodes with a total duration of at least 6 weeks during a 12-month period for the period beginning October 2, 2020 CONCLUSIONS OF LAW 1. For the period from April 13, 2017 to February 3, 2020, the criteria for an evaluation in excess of 20 percent for degenerative disc disease of the lumbosacral spine have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.14, 4.71a, Diagnostic Code 5242 (2020). 2. For the period from February 4, 2020 to October 1, 2020, resolving reasonable doubt in the Veteran's favor, the criteria for an evaluation of 40 percent, but no higher, for degenerative disc disease of the lumbosacral spine have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.14, 4.71a, Diagnostic Code 5242 (2020). 3. For the period beginning October 2, 2020, the criteria for an evaluation in excess of 40 percent for degenerative disc disease of the lumbosacral spine have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.14, 4.71a, Diagnostic Code 5242 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1975 to September 1979. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. In July 2020 and July 2021, the Board remanded the matter for additional development. Now the matter is returned to the Board. In November 2020, the RO increased the Veteran's disability rating for his service-connected lumbar spine disability from 20 percent to 40 percent, effective October 2, 2020. However, the appeal continues as the highest possible rating for the disability has not been assigned. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran is seeking higher evaluation for his service-connected degenerative disc disease of the lumbosacral spine. The Board notes that the Veteran filed his increased rating claim on April 13, 2017. At the time of filing, the Veteran was rated at 20 percent disabling for his disability. A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2020). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27 (2020). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. Also, in cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2020). Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. 38 C.F.R. § 4.59 (2020). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45 (2020). The intent of Rating Schedule is to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2020). VA has a duty to acknowledge and to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where there is a question as to which of two ratings to apply, VA will assign the higher rating if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7 (2020). Otherwise, it will assign the lower rating. Id. Pursuant to Diagnostic Code 5242, degenerative arthritis of the spine is evaluated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever method results in the higher rating. 38 C.F.R. § 4.71a (2020). Under General Formula, in pertinent part, a 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine; and a 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, General Formula (2020). A maximum 100 percent evaluation is warranted for unfavorable ankylosis of entire spine. Id. Under IVDS formula, in pertinent part, a 40 percent evaluation is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, and a maximum 60 percent evaluation is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, IVDS Formula (2020). For purposes of evaluations under IVDS formula, 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. Id., at Note 1. In an April 2017 letter, the Veteran's private chiropractor D.C. provided that the Veteran is recommended a treatment schedule of 12 chiropractic visits per year. Dr. D.C. provided that the Veteran's treatments include conservative pain management, physiotherapy, ultrasound therapy, heat therapy, chiropractic manipulation, and therapeutic stretching. Dr. D.C. stated that the Veteran continues to experience moderate improvement in his current condition with a moderate decrease in his pain levels, but still unable to reach maximal medical improvement. On May 2017 VA examination for back conditions, the examiner noted the Veteran's diagnosis of degenerative arthritis of the spine. The Veteran reported that he is unable to sit for more than 2 hours or to lift objects, and has trouble sleeping on his ride side. The Veteran provided that he has to use cold pack and pain medication. The Veteran's history of physical therapy, chiropractic treatment, and 3 injections into the back was noted, but no previous back surgery was reported. The Veteran's range of motion was measured at: forward flexion to 60 degrees; extension to 30 degrees; both right and left lateral flexions to 30 degrees; and both right and left lateral rotations to 30 degrees. Pain was noted on terminal flexion. The Veteran was able to perform repetitive-use testing with at least 3 repetitions without additional loss of function or range of motion afterwards. There was no evidence of pain with weight-bearing or localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. The examiner observed that the Veteran did not have guarding or muscle spasm of the thoracolumbar spine. The Veteran did not have ankylosis of the spine or IVDS of the thoracolumbar spine. The examiner noted the Veteran's occasional use of braces. The examiner remarked that the Veteran's X-rays show degenerative joint disease of the lumbosacral spine which is consistent with his age of 63. The examiner provided that the Veteran's thoracolumbar spine condition impacts his ability to work as he cannot sit for more than 2 hours at a time. The Veteran and his fiancée L.G. testified at the Board hearing held on February 4, 2020. The Veteran testified that he has been having a flare-up of his back since a couple of days prior to the hearing. With this flare-up, the Veteran stated that he has been having symptoms of joint stiffness, rigidity, and abnormal adhesion, and he could not make it back to bed after waking up at 2 in the morning so that his fiancée had to help him. He provided that they decided to buy some adult diapers in case that he cannot get out of the bed during the flare-up. The Veteran testified that these symptoms did not exist in 2017. It was noted that the Veteran was in a wheelchair during the hearing, and the Veteran provided that he uses wheelchair only during his flare-ups. The Veteran stated that his last flare-up happened a year ago and he has undergone 14 weeks of physical therapy for treatment. The Veteran also testified that he can only sit for less than 2 hours at a time and is unable to drive. The Board finds the Veteran's February 2020 testimony to be competent and credible evidence. On October 2, 2020, the Veteran submitted a back conditions disability benefits questionnaire (DBQ) report which was completed by a private physician K.L. Dr. K.L. noted that the Veteran has low back pain with radiating pain into bilateral lower extremities. As to the Veteran's flare-ups, Dr. K.L. indicated that he has increased symptoms with bending, flexing, and performing activities of daily living. Range of motion was measured at: forward flexion to 25 degrees; extension to 10 degrees; both right and left lateral flexions to 15 degrees; right lateral rotation to 15 degrees; and left lateral rotation to 26 degrees. Dr. K.L. reported that the Veteran's additional limitation in range of motion after repetitive-use testing was: forward flexion to 20 degrees; extension to 15 degrees; both right and left lateral flexions to 15 degrees; and both right and left lateral rotations to 15 degrees. Dr. K.L. indicated that pain contributes to additional functional loss. The Veteran had localized tenderness or pain to palpation in lumbar paraspinals and bilateral posterior superior iliac spine. The Veteran also had guarding or muscle spasm of the thoracolumbar spine, but his gait and spinal contour were normal. Dr. K.L. did not indicate whether the Veteran's has ankylosis of the spine. Dr. K.L. provided that the Veteran has IVDS, which resulted in at least 1 week but less than 4 weeks of incapacitating episodes over the past 12 months. The Veteran's occasional use of a cane was noted. Dr. K.L. provided that the Veteran's lumbar spine disability impacts his ability to perform occupational task because he has limited abilities to stoop, lift, kneel, stand, and walk. In July 2020, the Veteran's private physical therapist R.L. provided that the Veteran will always be needing physical therapy about 1 to 2 times per year in order to maximize his level of functioning. On November 2020 VA examination for back conditions, the examiner noted the Veteran's diagnosis of degenerative disc disease of the lumbosacral spine. The Veteran reported that his back pain has gotten worse since 2017, and his current symptoms include constant sharp pain and pain and tingling radiating down into both legs. The Veteran reported that he has severe flare-ups once in every 6 weeks, and has constant dull pain and sharp pain during the flare-ups. The Veteran described his functional impairment of the thoracolumbar spine as his inability to clean, trouble with putting socks on, requiring a long time to get dressed, and inability to drive. As to range of motion, the examiner only indicated that the Veteran's right lateral rotation was limited to10 degrees. The examiner noted that the Veteran could not perform some of the range of motion maneuvers due to pain, although he was able to sit straight up in the chair. The examiner indicated that there was no objective evidence of localized tenderness or pain on palpation of the joint or associated tissue of the thoracolumbar spine. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. The examiner provided disturbance of locomotion and interference with standing as additional factors contributing to the Veteran's disability. The Veteran did not have ankylosis of the spine. The examiner noted that the Veteran has IVDS of the thoracolumbar spine, but has not had any episodes of bed rest during the past 12 months. The Veteran reported that he had to be out of work for 2 months. As to assistive devices, the Veteran's occasional use of a wheelchair and constant use of a cane were noted. The examiner provided that the Veteran's thoracolumbar spine condition impacts his ability to work due to his difficulty with prolonged sitting. On October 2021 VA examination for back conditions, the Veteran reported sharp back pain with stiffness as his current symptoms. The Veteran also reported his flare-ups occur daily which are precipitated by repetitive lifting, quick movements, and prolonged standing and walking. The active range of motion was measured at: forward flexion to 30 degrees; extension to 20 degrees; both right and left lateral flexions to 20 degrees; and both right and left lateral rotations to 20 degrees. Pain was noted on all range of motion testing. The examiner indicated that passive range of motion testing results were the same as the active range of motion testing. The additional loss of range of motion after 3 repetitions was reported as the following: forward flexion to 25 degrees; extension to 15 degrees; both right and left lateral flexions to 15 degrees; and both right and left lateral rotations to 15 degrees. The examiner's estimation of range of motion immediately after repeated use over time based on information procured from relevant sources including the lay statements of the Veteran was the following: forward flexion to 20 degrees; extension to 10 degrees; both right and left lateral flexions to 10 degrees; and both right and left lateral rotations to 10 degrees. The examiner's estimation of range of motion during flare-ups were the same except that forward flexion was estimated to be further limited to 15 degrees. There was no objective evidence of crepitus or localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. The examiner indicated that the Veteran has had episodes of acute signs and symptoms due to IVDS that required bed rest with a total duration of at least 1 week but less than 2 weeks during the past 12 months. The examiner did not report the Veteran's use of any assistive devices as a normal mode or locomotion. The examiner provided that the Veteran's lumbar spine condition impacts his ability to perform occupational task because he has lower back pain, stiffness, limited range of motion, shooting pain into the legs, and difficulty with prolonged standing or walking. Based on the above, for the period prior to February 4, 2020, Board finds that the evidence of record does not show that the Veteran's degenerative disc disease of the lumbosacral spine resulted in functional limitation equivalent to forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of the entire spine. The Board also finds that the evidence of record does not show that the Veteran has had incapacitating episodes due to IVDS having a total duration of at least 4 weeks but less than 6 weeks during a 12-month period prior to February 4, 2020. Consequently, the Veteran's entitlement to an evaluation in evaluation in excess of 20 percent for degenerative disc disease of the lumbosacral spine for the period from April 13, 2017 to February 3, 2020 is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.14, 4.71a, Diagnostic Code 5242 (2020). However, the Board observes that the worsening of the Veteran's symptoms was shown during the February 2020 Board hearing, particularly with the Veteran's testimony on his flare-up symptoms that he was having at the time of the hearing which led him to use a wheelchair. The Board notes that the Veteran denied having those symptoms in 2017. The Board also notes that the October 2020 DBQ report completed by Dr. K.L. includes the Veteran's forward flexion limited to 20 degrees after repetitive-use testing. In light of the above, the Board resolves reasonable doubt in the Veteran's favor and finds that the Veteran's degenerative disc disease of the lumbosacral spine resulted in functional limitation equivalent to forward flexion of the thoracolumbar spine limited to 30 degrees or less for the period from February 4, 2020 to October 1, 2020. Consequently, resolving reasonable doubt in the Veteran's favor, the Veteran's entitlement to an evaluation of 40 percent, but no higher, for degenerative disc disease of the lumbosacral spine for the period from February 4, 2020 to October 1, 2020 is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.14, 4.71a, Diagnostic Code 5242 (2020). Further, the Board finds that the evidence of record does not show that the Veteran has had ankylosis of the thoracolumbar spine at any time during the period on appeal. The Board also finds that the evidence of record does not show that the Veteran has been having IVDS with incapacitating episodes with a total duration of at least 6 weeks during a 12-month period for the period beginning October 2, 2020. In this regard, the Board acknowledges the letter from the Veteran's employer stating that the Veteran has not been able to work for "approximately 16 weeks or 3 months every year" due to his condition worsening. See November 2020 Third Party Correspondence. However, the November 2020 employer letter cannot serve as evidence to show the Veteran's incapacitating episodes due to IVDS, because it is not medical evidence that shows a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, IVDS Formula, at Note 1 (2020). In this regard, the Board notes that the Veteran's private physician K.L. provided that the Veteran had at least 1 week but less than 4 weeks of incapacitating episodes over the 12-month period at the time of the October 2020 DBQ report. See also February 2020 Hearing Transcript, at 5 (the Veteran testified that he works as a tax consultant during the months of February, March, and April). Consequently, the Veteran's entitlement to an evaluation in excess of 40 percent for degenerative disc disease of the lumbosacral spine for the period beginning October 2, 2020 is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.14, 4.71a, Diagnostic Code 5242 (2020). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Kim, 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.