Citation Nr: 22018477 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 16-19 556 DATE: March 29, 2022 ORDER A disability rating more than 20 percent for lumbar degenerative joint disease with intervertebral disc syndrome (back disability) from April 2, 2013 to January 13, 2015, is denied. FINDING OF FACT Before January 13, 2015, the Veteran's back disability manifested in pain and forward flexion to at least 35 degrees and did not result in impairment approximating favorable or unfavorable ankylosis of the thoracolumbar spine. CONCLUSION OF LAW The criteria for a disability rating more than 20 percent for a back disability prior to January 13, 2015, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from February 1983 to June 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision by a Department of Veterans Affairs (VA) regional office, which is the agency of original jurisdiction (AOJ). In October 2018, the Board denied the Veteran's claim for a rating greater than 20 percent for his back disability for the period from April 2, 2013 to January 13, 2015. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). While the Board also decided the Veteran's appeal of entitlement an increased rating for his back disability for the period from January 13, 2015, the Veteran did not appeal this part of the decision. In July 2020, the Court issued a Memorandum Decision vacating the Board's decision and remanding the matter to the Board. In October 2021, the Board remanded the matter to the AOJ for further development. The AOJ substantially complied with the remand directives. The matter of entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU) was raised by the record. However, in February 2022, a TDIU was granted throughout the entire period on appeal. The matter has therefore been granted in full and is no longer for consideration by the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Increased Rating Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the The Veteran's back disability is currently rated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5243, for intervertebral disc syndrome (IVDS). This appeal stems from an increased rating claim filed by the Veteran in April 2013. Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 20 percent rating is warranted 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 percent rating 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. A 60 percent rating 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, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. Under the General Rating Formula for Diseases and Injuries of the Spine, 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. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). 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). A disability rating greater than 20 percent prior to January 13, 2015, for the Veteran's back disability is not warranted. In May 2012, the Veteran sought private treatment from W. Musleh, M.D. Dr. Musleh noted that the Veteran had a left L4-5 microdiscectomy three months earlier. The Veteran complained of minor lower back pain, but had no leg pain and normal strength. He stated that he felt improved, and Dr. Musleh recommended the Veteran return to regular activities. The Veteran first had a VA examination in connection with this claim in February 2014. He reported daily pain, as well as flare-ups that limited lifting, bending, sitting, standing, walking, and sleeping. Initial range of motion testing for the thoracolumbar spine revealed forward flexion to 40 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 15 degrees, and bilateral lateral rotation to 30 degrees or greater. The combined range of motion was at least 135 degrees. There was pain beginning at the endpoint of each range of motion. The Veteran could perform repetitive-use testing with at least three repetitions with no additional loss of motion. The examiner noted that the Veteran's functional loss included less movement than normal after repetitive use and pain on movement. The Veteran had localized tenderness or pain to palpation to the joints and soft tissue of the back, but did not have guarding or muscle spasm of the back. Muscle strength, reflex, and sensory examinations all reflected normal results. An April 2014 VA examiner noted that the Veteran has IVDS, but that he had not had any incapacitating episodes as defined by VA within the past 12 months. The examiner also opined that the Veteran's back disability would limit his ability to lift, and found there were contributing factors of pain, weakness, fatigability, and/or incoordination with additional limitation of functional ability of the thoracolumbar spine during flare-ups or with repeated use over time. The examiner estimated that the degree of range of motion loss during pain on use or flare-ups would be approximately 5 degrees in all directions, meaning flexion would be to 35 degrees, extension to 5 degrees, right lateral flexion to 5 degrees, left lateral flexion to 10 degrees, and bilateral lateral rotation to approximately 25 degrees, for a combined range of motion of 105 degrees. In November 2014, the Veteran sought private treatment from J. Bowden, M.D. Dr. Bowden noted the Veteran's history of low back pain, and the Veteran reported that he had right-sided back pain with extension down into the right thigh and calf for the past six months. The pain was worse with standing and walking, and generally better when the Veteran was sitting or lying down. The Veteran had received injections, but felt that they did not improve his pain. He had no bowel or bladder symptoms. The Veteran had similar complaints in December 2014, and underwent surgery on January 13, 2015. In the July 2020 Memorandum Decision, the Court found the Board did not explain whether the February 2014 VA examiner properly administered range of motion testing as required by 38 C.F.R. § 4.59 and Correia v. McDonald, 28 Vet. App. 158 (2016). Pursuant to § 4.59 and Correia, joints should be 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. If this testing cannot be conducted or is not necessary, a VA examiner must explain the reason why testing cannot be conducted. Correia, 28 Vet. App. at 170. The Court also found that the examiner did not explain his finding that additional loss of range of motion during flare-ups would be approximately 5 degrees in each direction. In September 2021, the Veteran stated that his pain never improved after his February 2012 surgery. He stated that he needed to use a walker most days during his recovery and could only walk about a block even after three months. He had shooting pains down the back of both legs and never got relief from the pain. The Veteran reported that he had to shift positions every 15 to 20 minutes at all times because the pain would get worse the longer he stayed still. Driving over uneven roads caused much worse pain and cramping. The Veteran also reported that in 2013, he could only sit for about 30 minutes in a good chair before pain became too severe. He indicated that he could only walk around the house for about 15 minutes before he needed to get off his feet and rest due to cramping pain. Leaving the house was painful, even with a walker. The Veteran's wife had to lift any groceries or other objects over 10 pounds in order to help him avoid back flare-ups and spasms, and had to help him get dressed and put on shoes. The Veteran reported that about twice a month, he would have to stay in bed for a day or two due to back pain. Some days, he found it difficult to ignore the pain enough to sleep. The Board obtained an addendum opinion from a VA examiner in November 2021. The November 2021 VA examiner found that the February 2014 VA examination had not been conducted in compliance with Correia, as the range of motion findings did not address pain on active and passive motion, or on weight-bearing and non-weight-bearing. After reviewing the Veteran's lay statements, medical records, and all procurable information, the examiner found that it was not possible to provide a retrospective opinion with respect to the Correia factors without resorting to mere speculation. The examiner elaborated that this inability was shared by the medical community at large due to the inability to quantify all of the contributing factors to be considered. Instead, the loss in range of motion and associated impairment of function would depend on the activity being conducted and severity of pain experienced at the time. With respect to flare-ups, the examiner provided a similar opinion, but stated that additional loss in range of motion could be expected during repeated use over time and during flare-ups. The examiner found the November 2014 examiner's estimate of an additional 5 degree loss of motion in all directions was reasonable. The evidence weighs persuasively against a finding that a rating more than 20 percent for the Veteran's back disability based on incapacitating episodes is warranted. While the Veteran has IVDS, there is no indication in the record that he has been prescribed bed rest by a physician, or for a duration that meets the criteria for a higher rating. The evidence also persuasively weighs against a rating of more than 20 percent for the Veteran's back disability under the General Rating Criteria. The Veteran has reported functional loss due to pain, excess fatigability, incoordination, repetitive use, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, as well as the estimates of VA examiners regarding the estimated additional loss during flare-ups or with repeated use over time, the degree of additional limitation reflected by this evidence does not show limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The Veteran argues that the February 2014 examination was inadequate to assess the severity of the back disability, particularly in light of the failure of the examiner to address the Correia factors. However, the November 2021 VA examiner stated examiners were unable to provide a retrospective opinion regarding the Correia factors with respect to the February 2014 VA examination. The examiner explained that this was due to an inability of the medical community at large because of the number of contributing factors to be considered. The Board finds the opinion in substantial compliance with the remand directives as the examiner explained why providing an opinion as to the Correia factors was not possible based on the evidence of record and the limits of medical knowledge. Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet.App. 141 (1999) ((holding that remand not required under Stegall where there was substantial compliance with remand directives)). The February 2014 examination, when taken together with the November 2021 opinion, treatment records, and the Veteran's lay statements, is sufficient to assess the Veteran's back disability during the period in question. The Board has considered the Veteran's contentions regarding his pain and functional impairment. Even considering the functional limitations described by the Veteran during a flare-up or with repeated use over time, which are worse than those noted on examination, the Board cannot find that the Veteran's symptoms more nearly approximate forward flexion to 30 degrees or less or ankylosis. The lay and medical evidence is against a finding that the Veteran has any neurological abnormality associated with his back disability other than bilateral sciatic radiculopathy. The Veteran's radiculopathy is already service connected and assigned separate ratings; he has not indicated disagreement with the assigned ratings or completed an appeal. (CONTINUED ON THE NEXT PAGE) The evidence persuasively weighs against the Veteran's claim for a rating in excess of 20 percent for his back disability for the period from April 2, 2013 to January 13, 2015. The benefit-of-the-doubt rule does not apply, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. D. Bruce, Counsel The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.