Citation Nr: 1751248 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 10-36 487A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a disability rating in excess of 20 percent for degenerative disc disease of the lumbar spine for the period beginning January 1, 2008 and ending June 14, 2017, and in excess of 40 percent from June 15, 2017. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey Counsel INTRODUCTION The Veteran served on active duty from February 1983 to February 2003. This matter is before the Board of Veteran's Appeals (Board) on appeal of a rating decision in October 2007 of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, that reduced the rating for the service-connected degenerative disc disease of the lumbar spine to 20 percent, effective January 1, 2008. The Veteran testified before the undersigned at a May 2013 Video Conference hearing. The hearing transcript is of record. In March 2014, April 2015, April 2016 and May 2017, the Board remanded the case for further development by the originating agency. In May 2017, the Board also found that the rating reduction, from 40 percent to 20 percent, effective January 1, 2008, was proper. The case has been returned to the Board for further appellate action. In an August 2017 rating decision, the RO granted an increased rating of 40 percent for service-connected degenerative disc disease, lumbar spine, effective June 15, 2017. The issue of an increased rating for degenerative disc disease of the lumbar spine remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). FINDINGS OF FACT 1. For the period beginning June 1, 2008 and ending June 14, 2017, the Veteran's degenerative disc disease of the lumbar spine was manifested by forward flexion of no less than 40 degrees; there was no evidence of intervertebral disc syndrome with incapacitating episodes, associated neurological deficit that has not already been accounted for or ankylosis. 2. For the period beginning June 15, 2017, the Veteran's degenerative disc disease of the lumbar spine is manifested by severe limitation of motion of the lumbar spine; however, there is no evidence of intervertebral disc syndrome with incapacitating episodes, associated neurological deficit that has not already been accounted for, or ankylosis. CONCLUSIONS OF LAW 1. For the period beginning June 1, 2008 and ending June 14, 2017, the criteria for a rating in excess of 20 percent for degenerative disc disease of the lumbar spine are not met. 38 U.S.C. § 1155 (2014); 38 C.F.R §§ 4.7, 4.71a, Diagnostic Code 5237, 5243 (2017). 2. For the period beginning June 15, 2017, the criteria for a rating in excess of 40 percent for degenerative disc disease of the lumbar spine are not met. 38 U.S.C. § 1155 (2014); 38 C.F.R §§ 4.7, 4.71a, Diagnostic Code 5237, 5243 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Furthermore, neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of the claim discussed below at this time is warranted. Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C. § 5103A(c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). In this case, the Veteran has indicated no such records and all pertinent records have been obtained. VA and private treatment records have been obtained. In addition, the Board finds there has been substantial compliance with its May 2017 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) Legal Criteria Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain, whether or not it radiates, stiffness, or aching in the area of the spine affected by the residuals of injury or disease, a 20 percent evaluation is warranted for disability of the thoracolumbar spine when there is 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 evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine is evaluated as 50 percent disabling, and unfavorable ankylosis of the entire spine is evaluated as 100 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5237 (2017). Note (1) permits the evaluation of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. 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. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Each range of motion measurement should be rounded to the nearest five degrees. See Plate V, 38 C.F.R. § 4.71 and 38 C.F.R. § 4.71a, Notes (2) and (4). In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. 38 C.F.R. § 4.71a, Note (3). 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 dysphasia; 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. 38 C.F.R. § 4.71a, Note (5). Intervertebral disc syndrome is to be evaluated either under the general rating formula for diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. For intervertebral disc syndrome manifested by incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent evaluation is warranted; with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent evaluation is warranted; and with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent evaluation is warranted. Note (1) states that 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. Analysis In an April 2003 rating decision, the RO granted service connection for lumbar spine degenerative disc disease, assigning a 10 percent evaluation, effective March 1, 2003. In an August 2005 rating decision, the rating for the service-connected lumbar spine degenerative disc disease was increased to 40 percent, effective May 12, 2005. In a June 2007 rating decision, the RO proposed to reduce the 40 percent rating for lumbar spine DDD to 20 percent. In an August 2007 statement, the Veteran reported that her low back disability had gotten worse since the last time she was seen by a VA examiner. In an October 2007 rating decision, the RO reduced the 40 percent rating for lumbar spine DDD to 20 percent, effective January 1, 2008. In a May 2017 decision, the Board affirmed this reduction, and remanded the issue of entitlement to a disability rating in excess of 20 percent for the period beginning January 1, 2008. In an August 2017 rating decision, the RO granted an increased rating of 40 percent for service-connected degenerative disc disease, lumbar spine, effective June 15, 2017. Period Beginning January 1, 2008 and Ending June 14, 2017 A rating in excess of 20 percent requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. VA and private treatment records, as well as Social Security Administration (SSA) records show that during this period, the Veteran complained of and was treated for chronic low back pain, including with lumbar steroid epidural injections, chiropractic treatment and physical therapy. On VA examination in March 2010, the Veteran complained of a mild, chronic aching in her low back, relieved by Motrin, Tramadol and Vicodin, but denied any true flare-ups of back pain. She denied any incapacitating episodes, radiculopathy, or bowel, bladder or sexual dysfunction. She did not use any assistive devices, such as braces or a cane, and did not use a TENS unit. She did report that her daily activities were affected and that she had decreased ability to do chores, sleep and play with her grandchildren. On physical examination, the examiner noted that the Veteran would not flex beyond 40 degrees and would not extend at all, but the examiner noted that she rose out of her chair, without the use of her hands or her arm, with flexion 100 degrees, which puts a tremendous amount of stress on the lumbar spine. The examiner noted that the Veteran had no inflammatory joint disease and no incapacitating events. The examiner noted further that the Veteran had no pathophysiological findings that would lead one to believe that she could not flex past 40 degrees. The Veteran performed right and left lateral flexion and rotation to 30 degrees, but would not do repetitive motion of her back, citing too much pain. She had absolutely no indication in her lumbar spine that she would have issues that would prevent her from full range of motion without specific discomfort. There was no indication of toe drop bilaterally, lower extremity radiculopathy or bilateral sensory deprivation. On VA examination in August 2014, forward flexion was to 50 degrees, with pain; extension was to 20 degrees, with pain; right and left lateral flexion to 20 degrees, with pain; and right and left lateral rotation to 20 degrees, with pain. There was no additional loss of motion with repetitive use testing. She reported flare-ups (spasms) of back pain, and the report indicated that there was functional loss in the form of pain on movement. The examiner also noted that the Veteran wouldn't range much, saying that her low back hurt. However, there were no spasms and she gave poor effort. Therefore, the examiner concluded that the Veteran's active range of motion was not accurate. He also noted that she could sit with her low back flexed to 90 degrees without displaying any discomfort, and straight leg raises were negative. Muscle strength was normal, as were reflex and sensory examinations. There was no ankylosis and no intervertebral disc syndrome (IVDS). A March 2015 Disability Benefits Questionnaire (DBQ) indicates that the Veteran had chronic lumbar pain that resulted in painful range of motion. No specific range of motion findings were noted. On VA examination in January 2016, range of motion testing showed forward flexion to 60 degrees, extension to 30 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 20 degrees. There was no additional loss of function or range of motion after repetitive use testing. Functional loss was caused by pain, but pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated used over a period of time or with flare-ups of back pain. Muscle strength was normal; reflex and sensory examinations were normal, and straight leg raising test was negative. The examiner noted that there was ankylosis of the spine. However, the Board notes that as the Veteran retained some movement in the lumbar spine, as range of motion testing noted above shows, there is no finding of unfavorable ankylosis of the entire thoracolumbar spine. On VA examination in May 2016; forward flexion was to 45 degrees, extension was to 10 degrees, right and left lateral flexion were to 15 degrees, and right and left lateral rotation were to 30 degrees. She reported flare-ups of back pain, described as "muscle spasms" that occurred approximately 2-3 times a month and lasted for 1 hour each episode. However, there was no additional loss of function or range of motion after repetitive use testing. Pain did not cause functional loss, and pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time or with flare-ups of back pain. Muscle strength was normal; reflex and sensory examinations were normal, and straight leg raising test was negative. There was no ankylosis and no IVDS or episodes requiring bed rest. Even with consideration of pain and functional loss, the Veteran was able to flex forward well beyond 30 degrees during this period, and maintained significant movement in the spine, which means that there was no evidence of ankylosis. In this regard, on VA examination in January 2016, the examiner noted that there was ankylosis of part of the thoracolumbar spine; however, the Veteran was able to perform range of motion exercises for the lumbar spine, including forward flexion to 45 degrees. Furthermore, the combined range of motion of the lumbar spine was more than 120 degrees, and there was no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. In addition, there was no evidence during this period of any neurological deficits, other than the left and right lower extremity neuropathy the Veteran is already separately compensated for. The evidence is therefore also against a separate rating for neurologic impairment associated with the Veteran's low back disability prior to June 15, 2017. Consequently, the Board finds that a rating in excess of 20 percent is not warranted for this period under the general rating formula. Furthermore, in regards to DeLuca criteria, the Veteran has reported pain during range of motion on examination. However, the VA examiners during this period also noted that joint function of the spine was not additionally limited after repetitive use. Furthermore, although the Veteran reported functional impairment during flare-ups of back pain; there is no medical evidence during this period, to show that there is any additional loss of motion of the lumbar spine due to pain or flare-ups of pain, supported by objective findings, or due to excess fatigability, weakness or incoordination, to a degree that supports a rating in excess of 20 percent. She denied any true flare-ups of back pain during examination in March 2010, but reported constant pain. Painful motion can equate to limitation of motion. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). However, pain alone does not constitute a functional loss under VA regulations that evaluate disability based upon range-of-motion loss. Mitchell v. Shinseki, No. 09-2169 (U.S. Vet. App. Aug. 23, 2011). Moreover, her painful motion is already contemplated in her 20 percent evaluation. A higher rating would therefore not be warranted on the basis of functional impairment. Cf. DeLuca, 38 C.F.R. §§ 4.40, 4.45. The Board also finds that higher ratings are not available under the formula for rating intervertebral disc syndrome based on incapacitating episodes. In this regard, the Veteran denied any incapacitating episodes due to back pain on examination in August 2014 and May 2016, and there was no indication of such on examination in March 2010 and January 2016. There is no documentary evidence of any incapacitating episodes or physician-prescribed bed rest for the Veteran's low back disability during this period. Therefore, a rating in excess of 20 percent under Diagnostic Code 5243 is not warranted for the period prior to June 15, 2017. Period Beginning June 15, 2017 In order for the Veteran to receive a rating in excess of 40 percent under the General Rating Formula for Diseases and Injuries of the Spine, there must be evidence of unfavorable ankylosis of the entire thoracolumbar spine or separately ratable neurologic disability. VA treatment records dated from June to August 2017 show that the Veteran continued to be treated for chronic low back pain. She was no longer interested in epidural steroid injections. On VA examination in June 2017, there was evidence of increased, severe limitation of motion with pain on motion, during weight-bearing and non-weight-bearing. As such, the RO increased the rating for the low back disability to 40 percent, effective June 15, 2017, the date of the VA examination that showed increased symptomatology. However, there was no evidence of unfavorable ankylosis of the thoracolumbar spine on VA examination in June 2017. The Board also notes that there are no treatment records, VA or private, showing any evidence of unfavorable ankylosis of the thoracolumbar spine for this period, nor has the Veteran asserted immobility of her thoracolumbar spine. The provisions of 38 C.F.R. §§ 4.40, 4.45 are not for consideration where the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). The Veteran does not have unfavorable ankylosis of the thoracolumbar spine, inasmuch as she retains the ability to move the spine and it has not been shown to be fixed. There is no other basis for a higher schedular rating for the orthopedic manifestations of the low back disability. Accordingly, the Board finds that a rating in excess of 40 percent is not warranted under the general criteria for rating injuries of the spine. With regard to neurologic impairment, the Board notes that, except for the noted radiculopathy of the left and right lower extremities, which the Veteran is already being separately compensated for, there is no evidence of neurologic impairment during the appeal period. The Board also notes that a higher rating is not warranted under the formula for rating intervertebral disc syndrome based on incapacitating episodes. In this regard, the record is negative for any evidence of intervertebral disc disease or physician-prescribed bed rest or examination in June 2015, or at any other time during this period. A rating on that basis would, therefore, not be warranted. Cf. 38 C.F.R. § 4.71a Formula for Rating Intervertebral Disc Disease (2017). The Board has found no other section that provides a basis upon which to assign a higher disability evaluation or separate compensable evaluation for the low back disability. The Veteran is competent to report the symptoms of her low back disability. Her complaints are credible. The Veteran's complaints have been considered in the above noted evidence; however, evaluations for VA purposes have not shown the severity required for a higher schedular rating, as discussed above. After examining all the evidence, the Board concludes that the weight of the evidence is against a rating in excess of 20 percent prior to June 15, 2017, and a rating in excess of 40 percent beginning June 15, 2017, for degenerative disc disease of the lumbar spine. 38 U.S.C. § 5107 (b) (2014); 38 C.F.R. §§ 4.7, 4.21 (2017). Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). ORDER For the period beginning January 1, 2008 and ending June 14, 2017, a rating in excess of 20 percent for degenerative disc disease of the lumbar spine is denied. For the period beginning June 15, 2017, a rating in excess of 40 percent for degenerative disc disease of the lumbar spine is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs