Citation Nr: 22017863 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 14-40 234A DATE: March 26, 2022 ORDER Entitlement to an initial 50 percent rating, but not higher, for spondylosis L-5 with intervertebral disc syndrome (lumbar spine disability) is granted, subject to the laws and regulations controlling the award of monetary benefits. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's lumbar spine disability symptomatology more nearly approximates unfavorable ankylosis of the thoracolumbar spine, but it does not more nearly approximate ankylosis of the entire spine, or incapacitating episodes. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to an initial rating of 50 percent, but not higher, for lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.71, Diagnostic Code (DC) 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1969 to October 1970. This matter comes to the Board on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon which, inter alia, granted service connection for lumbar strain evaluating it as 10 percent disabling. In May 2010, the Veteran filed his notice of disagreement with, among other things, the 10 percent rating for lumbar spine disability, and in November 2014 was issued a statement of the case and perfected his appeal to the Board. The Board notes that in a November 2010 rating decision, the RO granted a 20 percent rating from September 28, 2010 for lumbar spine disability, and in a May 2014 rating decision, granted a 40 percent rating from February 14, 2013, creating a "staged" rating. In November 2018, the Veteran appeared before the undersigned Veterans Law Judge at a videoconference Board hearing. A copy of the transcript is of record. In a February 2020 decision, the Board granted an initial 40 percent rating for lumbar spine disability from June 25, 2008 to February 14, 2013, but denied a higher than 40 percent rating for lumbar spine disability for the entire appeal period, and granted an earlier effective date of April 19, 1971 for lumbar spine disability. The Veteran appealed the Board decision to the Court of Appeals for Veteran's Claims (Court) which in November 2020, granted a Joint Motion for Partial Remand (JMPR) filed by the parties, vacating and remanding part of the Board's February 2020 decision finding that the Board failed to provide adequate reasons and bases for the denial of the Veteran's claim for service connection for a right hip disability, and finding the lumbar spine disability inextricably intertwined with the claim for service connection for a right hip disability. The November 2020 JMPR granted by the Court specifically requested that the Board's decision as to the grant of an April 19, 1971 effective date for lumbar spine disability not be disturbed and indicated that the appellant expressly noted he would not pursue the appeal of this finding, and the issue should be considered abandoned and dismissed. In a March 2021 decision, the Board, among one other thing, denied an initial rating higher than 40 percent for lumbar spine disability, and also noted that the Veteran's submission of a VA Form 10182 notice of disagreement was invalid as the Board had established jurisdiction via the Legacy system procedures. In June 2021, the Board vacated that part of the March 2021 decision that determined that the Veteran's submission of a VA Form 10182 notice of disagreement was invalid, but left undisturbed, among one other thing, the denial of an initial rating higher than 40 percent for lumbar spine disability from June 25, 2008. The Veteran appealed the Board decision to the Court of Appeals for Veteran's Claims (Court) which in November 2021, granted a JMPR filed by the parties, vacating and remanding part of the Board's March 2021 decision, finding that the Board failed to provide adequate reasons and bases for the denial of the Veteran's claim for an initial rating higher than 40 percent for lumbar spine disability. The Court left undisturbed the part of the March 2021 Board decision that granted service connection for right inguinal neuropathic pain, finding the decision beyond the Court's jurisdiction. HIGHER INITIAL RATING Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination, or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). When evaluating a disability under VA's General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis, i.e., functional loss consistent with that contemplated by ankylosis. See Chavis v. McDonough, 34 Vet. App. 1, 28-29 (2021). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. Lumbar Spine Disability The Veteran's lumbar spine disability is currently rated 40 percent disabling under DC 5299-5243. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. 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. 38 C.F.R. § 4.27. When an unlisted disease or injury is encountered, it will be rated by analogy under a diagnostic code built up using the first 2 digits from that part of the Rating Schedule most closely identifying the body part or system affected and by using "99" for the last 2 digits. Id. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS Rating Formula). Under the General Rating Formula for Diseases and Injuries of the Spine applied by DC 5237, the disability is evaluated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. A 20 percent rating requires thoracolumbar spine forward flexion 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 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the thoracolumbar spine warrants a 50 percent evaluation, and unfavorable ankylosis of the entire spine is rated 100 percent disabling. 38 C.F.R. § 4.71a. Following the criteria set forth in the General Rating Formula for Diseases and Injuries of the Spine, in relevant parts, Note (1) instructs to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2) provides that the combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. Note (5) provides that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. The IVDS Rating Formula provides for ratings based on incapacitating episodes, and provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 disability rating 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 60 percent rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. In a July 2009 VA examination report, the examiner noted that the Veteran complained of chronic low back pain due to in-service hernia surgery, and the Veteran reported that his primary problem is pain, not weakness, fatigue, lack of endurance, or stiffness. He denied any periods of incapacitation requiring bedrest prescribed by a physician in the last 12 months, and also denied catching, locking, giving way, or swelling of his back, or numbness paresthesia, or radiation of pain. Forward flexion was to 80 degrees, and extension to 45 degrees with active and passive motion, and after 3 repetitions without pain. His examination was not limited by pain, fatigue, weakness, lack of endurance, incoordination, or lack of effort. The Veteran had no guarding or fear of injury, showed no atrophy, deformity or malalignment, and had no incoordination, instability, subluxation, or ankylosis. In a September 2010 VA examination report, the examiner noted that the Veteran complained of chronic low back pain, but no radiation of pain from his upper and mid-back, and no incapacitation requiring bed rest prescribed by a physician because of his upper and mid-back condition in the last 12 months. The Veteran reported that he did not use a brace, cane, or other assistive device for his upper or mid-back pain, and has no particular flare-ups effecting speed, coordination, or function. The Veteran was able to forward flex 55 degrees and extend 35 degrees in active and passive motion including after 3 repetitions, but did not go further than 55 degrees because of pain. The examiner noted guarding and fear of injury while moving the thoracolumbar spine. The Veteran's thoracolumbar spine disability showed no evidence of atrophy, deformity, or malalignment, incoordination, instability, or subluxation, abnormal posture, abnormal movement, or ankylosis. A July 2012 VA examination report indicates that the Veteran's lumbar spine disability made it difficult to reach 12 inches from his toes, and bend more than 60 degrees forward. Range of motion measurements were as follows: forward flexion to 80 degrees with evidence of painful motion at 65 degrees, extension to 30 degrees or greater, right and left lateral flexion both to 25 degrees with evidence of painful motion at 25 degrees, and right and left lateral rotation to 30 degrees or greater. Post repetitive use testing range of motion was as follows: forward flexion to 75 degrees, extension to 30 degrees or greater, right and left lateral flexion to 25 degrees, and right and left lateral rotation to 30 degrees or greater. The Veteran reported pain on movement with repetitive use testing, localized tenderness in the middle left buttock, right sacroiliac joint and right trochanter. There was no guarding or muscle spasm of the thoracolumbar spine reported, and muscle strength testing was normal. The examiner noted that the Veteran did not have IVDS, and did not use assistive devices. A February 2013 VA examination report indicates that the Veteran reported flare-ups of the thoracolumbar spine, stating that his left 4th toe burns at night, and that he has left thigh numbness which has been constant for many years. Forward flexion was to 30 degrees with painful motion at 30 degrees, extension was to 20 degrees with painful motion at 20 degrees, right and left lateral flexion both to 20 degrees with painful motion at 20 degrees, and left and right lateral rotation to 30 degrees or greater. Post-repetitive use testing flexion was to 20 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 10 degrees, and right and left lateral rotation both to 30 degrees. The examiner noted additional limitation after repetitive use due to pain on movement resulting in less movement than normal, and instability of station. The Veteran reported localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine, guarding or muscle spasms resulting in an abnormal gait. The examiner also noted muscle atrophy, but normal muscle strength. The examination report reflected radicular pain and symptoms of moderate paresthesias and/or dysesthesias in the left lower extremity, and mild numbness in the right lower extremity. The Veteran also reported left dorsal flexion great toe weakness, and the examiner described the Veteran's radiculopathy as moderate on the left side. The examination report indicated that the Veteran had IVDS of the thoracolumbar spine, but the Veteran had not had any incapacitating episodes over the past 12 months due to IVDS. The Veteran reported constant use of a cane, and the examiner noted that the Veteran's thoracolumbar spine condition impacted his ability to work as any tasks requiring a level of repeated labor would be unsafe and problematic. In a May 2021 letter, an orthopedist stated that it is at least as likely as not that the Veteran's present service connected lumbar spine disability rating does not accurately reflect the longevity or severity of his disability. He reported that the Veteran's low back pain has progressively worsened over the years, and that the Veteran avoids bending over and is quite restricted in respect to many of his hobbies because they exacerbate the intensity of his back pain. The Veteran described the pain as constant and consisting of a deep aching sensation. He is limited to 10 minutes of sitting, or 5 minutes of standing before his back pain starts to escalate. The orthopedist indicated that when the Veteran's back pain increases, he typically must lie down to mitigate the severity of the pain. He also stated that it is at least as likely as not that the Veteran's daily functional motion would be: forward flexion of 5 to 10 degrees; extension to 5 degrees; left lateral flexion to 5 degrees, and right lateral flexion 5 to 7 degrees. He also opined that it is at least as likely as not that the Veteran's disability assessment would be most accurately assessed as of February 2013 as equating to the spine with an unfavorable ankylosis of the entire thoracolumbar spine, particularly when combining his severe loss of functional and terminal motion along with symptoms of muscle spasm, tenderness, stiffness, and the presence of constant pain. The orthopedist stated that the Veteran is worse off than having a fused spine as a successful spine fusion eliminates pain, and the Veteran literally has no functional motion, but has pain severely limiting his motion in the 6 planes of motion that the lumbar spine is capable of. The Board notes that an examiner's characterization of the level of disability is not binding on the Board. 38 C.F.R. § 3.100(a) (delegating the Secretary's authority "to make findings and decisions... as to the entitlement of claimants to benefits" to, inter alia, VA "adjudicative personnel"); 38 C.F.R. § 4.2 ("It is the responsibility of the rating specialist to interpret reports of examination... so that the current rating may accurately reflect the elements of disability present"). The Board finds that the evidence is at least evenly balanced as to whether the Veteran's lumbar spine disability symptomatology more nearly approximates unfavorable ankylosis of the thoracolumbar spine as contemplated by a 50 percent rating under the general rating formula. While the VA examination reports reflect that the Veteran's lumbar spine disability limited him to between 20 and 80 degrees forward flexion, and 15 to 45 degrees extension, including with repetitive use testing, there is no evidence of record indicating that the examinations were administered during a flare-up. Additionally, the May 2021 orthopedist reported that the Veteran's low back pain has progressively worsened over the years, and that the pain restricts his ability to participate in many hobbies. The orthopedist described the Veteran's functional limitation in terms of range of motion as at least as likely as not, forward flexion to 5 to 10 degrees, and extension to 5 degrees. While the VA examination reports indicated that the Veteran did not have ankylosis of the spine, the May 2021orthopedist equated the Veteran's spine disability symptomatology to unfavorable ankylosis of the entire spine, as the pain severely limits his motion in all planes of motion. The Veteran has competently and credibly indicated that he suffers from flare-ups of his lumbar spine disability which cause burning in his left 4th toe at night, and left thigh numbness. Therefore, it is reasonable to conclude based on the Veteran's competent lay statements regarding back pain during a flare-up that his back range of motion is more severely limited during a flare-up, and that his back pain has caused such functional limitation for the entire period on appeal. The February 2013 examiner also reported that the Veteran utilized a cane for ambulation due to his lumbar spine disability, and noted muscle atrophy, and instability of station. Considering these contentions in light of the evidence of record and the applicable law, the orthopedic manifestations of the Veteran's lumbar spine disability are best evaluated as 50 percent disabling. However, a higher 100 percent disability rating is not warranted. The Veteran does not contend, and the evidence does not demonstrate that the Veteran's lumbar spine disability has resulted in symptomatology that more nearly approximates ankylosis of the entire spine, to include the Veteran's reports of functional limitation during a flare-up. The Veteran's May 2021 orthopedist noted that the Veteran's lumbar spine disability symptomatology equated to unfavorable ankylosis of the thoracolumbar spine, rather than the entire spine. There is no additional evidence of record, and the Veteran does not otherwise contend, that his lumbar spine disability symptomatology causes functional limitation which more nearly approximates ankylosis of the entire spine. Additionally, while the Veteran has been diagnosed with IVDS, the evidence from the February 2013 VA examination report reflects that the Veteran did not have any incapacitating episodes due to IVDS that required bed rest prescribed by a physician, and treatment by a physician in the past 12 months. Therefore, the Veteran's lumbar spine disability symptomatology, while significant, does not more nearly approximate symptomatology contemplated by a rating higher than 50 percent under either the rating schedule for IVDS or the general rating formula schedule. As the reasonable doubt created by this approximate balance in the evidence must be resolved in favor of the Veteran, entitlement to a rating of 50 percent, but not higher, is warranted for the Veteran's lumbar spine disability for the entire appeal period. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Maddox, 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.