Citation Nr: 1752057	
Decision Date: 11/14/17    Archive Date: 11/22/17

DOCKET NO.  10-42 229	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to an increased rating for degenerative disc disease of the lumbar spine, currently rated as 10 percent disabling.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

S. An, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1982 to April 1990.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  

In September 2011, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge of the Board at the RO.  A transcript of the hearing is of record.

In compliance with the January 2017 Order by the United States Court of Appeals for Veterans Claims (Court), granting a Joint Motion for Partial Remand to vacate, in part, an August 2015 Board decision, the Board in April 2017, remanded the matter for additional development.  The matter has returned to the Board for appellate review.   

This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system.


FINDINGS OF FACT

1. Prior to June 9, 2017, the Veteran's degenerative disc disease of the lumbar spine was manifested to forward flexion of the thoracolumbar spine greater than 60 degrees; combined range of motion greater than 120 degrees but not greater than 235 degrees; did not cause muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, and did not result in ankylosis.

2. Beginning June 9, 2017, the Veteran's degenerative disc disease of the lumbar spine was manifested by forward flexion of the thoracolumbar spine that was limited to greater than 30 degrees but not greater than 60 degrees.  


CONCLUSIONS OF LAW

1. Prior to June 9, 2017, the criteria for a disability rating greater than 10 percent for degenerative disc disease of the lumbar spine have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5243-5237 (2017).

2. From June 9, 2017, the criteria for a disability rating of 20 percent, but no greater, for degenerative disc disease of the lumbar spine have been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5243-5237 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

Neither the Veteran, nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016).  

Further, a review of the claims file shows that there has been substantial compliance with the Board's prior remand directives and thus, no further action in this regard is warranted. See Stegall v. West, 11 Vet. App. 268 (1998).  

The Veteran was also provided VA examinations (the reports of which have been associated with the claims file), which the Board finds to be adequate for rating purposes, as the examiners provided the information necessary to rate the service-connected disability on appeal.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Under these circumstances, the Board concludes that appellate review may proceed without prejudice to the Veteran.
 
Increased Ratings
	
Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R., Part 4.  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized.  38 C.F.R. § 4.1.  Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work.  38 C.F.R. § 4.2.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7.

The primary concern for an increased rating for a service-connected disability is the present level of disability.  Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

When determining the severity of musculoskeletal disabilities, which are at least partly-rated on the basis of range of motion, VA must also consider the extent the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated due to the extent of pain/painful motion, limited or excess movement, weakness, incoordination, and premature/excess fatigability, etc., particularly during times when symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See DeLuca v. Brown, 8 Vet. App. 202 (1995), see also 38 C.F.R. §§ 4.40, 4.45, 4.59.
 
Low Back Condition

In September 2009, the Veteran filed his claim for an increased rating for his service-connected degenerative disc disease of lumbar spine. See Report of General Information dated September 2009.  In a March 2010 rating decision, the RO increased his noncompensable disability rating and awarded a 10 percent evaluation for degenerative disc disease effective September 23, 2009, the date of claim.  The Veteran disagrees with the assigned evaluation and seeks a higher evaluation.  

Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, DC 5235 to 5243.  Under the General Rating Formula, a 10 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 60 degrees, but not greater than 85 degrees; or, when the combined range of motion of the thoracolumbar spine is greater than 120 degrees, but not greater than 225 degrees; or when there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height.

Pertinent to the current appeal, a 20 percent evaluation is appropriate where 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 is 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 disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a.

In addition to the General Rating Formula, VA's regulations contain a Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, DC 5243 (2017).  Ratings under this diagnostic code are assigned according to the duration of "incapacitating episodes" throughout the year due to IVDS.  An "incapacitating episode" is defined as 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.  Pertinent to the current appeal, a 40 percent evaluation is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  A 60 percent evaluation is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a.  

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.  38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1).

Here, the evidence of record does not show that the Veteran has a diagnosis of IVDS during any period of appeal.  Although VA examiners in the September 2012 and June 2017 indicated IVDS on the examination reports, the Veteran denied suffering from any incapacitating episodes that required bed rest as prescribed by a physician.   In fact, he testified that he did not see a physician when exacerbations occurred, but stayed home from work using his annual sick leave. See September 2011 Hearing Transcript.  Further, no other spine examinations of record show that the Veteran had IVDS at any time.  There is also no evidence demonstrating that bed rest was prescribed by a physician to treat the Veteran's back disorder and he has not presented any evidence to the contrary.  

Because the prescription of bed rest is a foundational requirement of a rating under this section of the rating schedule, the absence of any prescribed bed rest precludes a rating from being assigned under it.  As such, a rating based on IVDS is not appropriate, and it is therefore more beneficial to evaluate the Veteran's low back disorder under the General Rating Formula for Diseases and Injuries of the Spine.

Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees.  The normal combined range of motion of the thoracolumbar spine is 240 degrees.  38 C.F.R. § 4.71a, Note (2), see also Plate V.

VA examined the Veteran four times during this appeal's pendency in November 2009, September 2010, September 2012, and June 2017.

A November 2009 VA spine examination reflects that the Veteran demonstrated flexion to 70 degrees, extension to 20 degrees, lateral extension to 20 degrees bilaterally, and rotation to 20 degrees bilaterally.  The combined range of motion of the thoracolumbar spine was 170 degrees.  There was no muscle spasm or tenderness noted.  As for lower extremities, he denied suffering from bowel or bladder dysfunction. X-rays of the lumbar spine revealed degenerative disc disease of L5-S1. See November 2009 VA Spine Exam Report.

A September 2010 VA spine examination report reflects forward flexion of 70 degrees, extension to 20degrees, lateral flexion to 30 degrees bilaterally, and rotation to 30 degrees bilaterally.  The examiner noted that there was no pain at any of the endpoints range of motion maneuvers.  The examiner also found no additional functional loss in contemplation of pain, fatigability, weakness, lack of endurance, or loss of coordination.   He was diagnosed with degenerative disc disease of the lumbar spine.  See September 2010 VA Joints and Spine examination.  

In September 2012, the Veteran was afforded a VA spine examination.  On range of motion testing, he demonstrated flexion to 80 degrees with pain beginning at 40 degrees.  He demonstrated extension to 10 degrees with pain from 0 degrees, lateral extension to 25 degrees bilaterally with pain beginning at 10 degrees, and rotation to 30 degrees bilaterally with pain beginning at 20 degrees.  The examiner indicated there was no functional loss or additional limitation in range of motion, but there was "less movement than normal".  There was no tenderness on palpation or muscle spasm.  There was no loss of bladder or bowel control.  Based on the Veteran's report, the examiner indicated IVDS with at least 1 week but less than 2 weeks of incapacitating episodes over the past 12 months.  However, there is no evidence that bed rest was prescribed by a physician as treatment for his back condition at any time. See September 27, 2012 Back Conditions Disability Benefits Questionnaire (DBQ).  

In compliance with the April 2017 Board remand, the Veteran was afforded another VA spine examination in June 2017.  On initial range of motion testing, he demonstrated flexion to 70 degrees, extension to 20 degrees, lateral flexion to 25 degrees bilaterally, rotation to 30 degrees bilaterally.   Pain on motion was noted on examination but the examiner indicated no additional function loss.  There was evidence of pain with weight bearing reflected in terms of range of motion, flexion to 50 degrees, extension to 20 degrees, lateral flexion to 20 degrees bilaterally, right rotation to 30 degrees, and left rotation to 20 degrees.  There was no muscle spasm or muscle atrophy.  There was mild radicular intermittent pain of the lower extremities indicated.  No ankylosis present on examination.  IVDS was indicated but the Veteran denied having any episodes of acute signs and symptoms due to IVDS that required bed rest. See June 9, 2017 Back Conditions DBQ.  

In view of the above, for the period prior to June 9, 2017, the Board finds that the Veteran is adequately compensated by the assigned 10 percent evaluation based on limitation of motion.  In November 2009, he demonstrated flexion to 70 degrees with a combined range of motion of 170 degrees.  There was no change in range of motion in September 2010 where he demonstrated forward flexion to 70 degrees.  Likewise, in September 2012, he demonstrated forward flexion of 80 degrees with evidence of pain on motion.  The Board is not aware of any other evidence that shows the severity of the Veteran's low back disability during this period.  As the evidence of record during this time period does not show limitation of flexion to 60 degrees, combined range of motion not greater than 120 degrees, or muscle spasm or guarding resulting in abnormal gait or abnormal spinal contour, a rating higher than 10 percent is not warranted prior to June 9, 2017. 38 C.F.R. § 4.71a, DC 5237 (2016).  

However, the Board finds objective medical evidence of record to support that a disability rating of 20 percent is warranted beginning June 9, 2017.  At his most recent VA examination in June 2017, the Veteran demonstrated forward flexion limited to 50 degrees on range of motion testing with weight bearing.  Although he demonstrated forward flexion to 70 degrees on non-weight bearing, which is representative of limitation of motion for a 10 percent evaluation, the Board nonetheless, concludes that the symptomatology and functional impact associated with the Veteran's degenerative disc disease of the lumbar spine, in total, more nearly approximates the schedular criteria for a 20 percent evaluation.  As such, a 20 percent rating, but no higher, beginning June 9, 2017 to the present is granted.  

The Board has also considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  Painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  However, even if flexion was limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss.  Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011).  Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss.  Id. at 43; see 38 C.F.R. § 4.40.  

Although the VA examiner in June 2017 above found that the Veteran's degenerative disc disease lumbar spine resulted in "less movement than normal" and pain on movement, the examiner also determined that he did not have weakness, fatigability, or incoordination that could significantly limit his functional abilities during flare-ups or when the spine was used repeatedly over a period of time.  In this regard, VA treatment records and VA examinations do not reveal functional loss or functional impairment, including additional limitation of motion, on account of pain, weakness, that is not already contemplated by the assigned ratings. 38 C.F.R. § 4.59.  Thus, a higher rating is not warranted for the Veteran's degenerative disc disease lumbar spine even in consideration of painful motion and other factors such as weakness, fatigability, lack of endurance, and incoordination.  

Lastly, the Board notes that the Veteran is already receiving a separate rating for radiculopathy of the right lower extremity associated with his service-connected degenerative disc disease and radiculopathy of the left lower extremity.  Throughout the appeal period, on examination, no motor or strength deficits, reflex asymmetry, or sensory changes were noted; no other neurological abnormalities affecting the lower extremities were noted.  Additionally, based on the lay and medical evidence there is no bowel or bladder impairment.  After reviewing the evidence of record, the Board finds that the Veteran does not have any additional neurological impairment associated with his service-connected low back condition which would warrant a separate disability rating.  Thus, there is no basis for additional separate neurological evaluations.

In sum, prior to June 9, 2017, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 10 percent for degenerative disc disease of the lumbar spine.  38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

Beginning June 9, 2017, the Board finds that a disability rating of 20 percent, but no higher, for degenerative disc disease is warranted.


ORDER

Prior to June 9, 2017, an increased rating in excess of 10 percent for degenerative disc disease of the lumbar spine is denied.  

From June 9, 2017, a disability rating of 20 percent, but no higher, for degenerative disc disease of the lumbar spine is granted.



____________________________________________
KELLI A. KORDICH
 Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs