Citation Nr: 1759934 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 13-00 568A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a rating in excess of 20 percent for a lumbar spine disability. REPRESENTATION Appellant represented by: Douglas Sullivan, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1987 to August 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In August 2016, the Veteran testified during a hearing before the undersigned Veterans Law Judge by videoconference; a transcript of that hearing is of record. In December 2016, the Board remanded the claims for an increased rating for a lumbar spine disability, service connection for a psychiatric disorder, and entitlement to a total disability rating based on individual unemployability (TDIU). In an October 2017 rating decision, the RO granted service connection for a psychiatric disorder and TDIU. As this was full grant of the benefits sought on appeal, the issue is no longer before the Board. With respect to the Veteran's increased rating claim for the lumbar spine, the Board finds that the RO substantially complied with the remand instructions. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). In the December 2016 remand, the Board also remanded the issues of service connection for right and left knee conditions, migraine headaches, erectile dysfunction, insomnia, right and left foot conditions, right and left gait conditions, an upper back condition, a neck condition, and severe stomach problems for issuance of a statement of the case (SOC). See Manlincon v. West, 12 Vet. App. 238 (1999). The SOC was issued in August 2017, and the Veteran submitted a VA Form 9. As the Veteran is awaiting a hearing on these claims, the issues are not ripe for adjudication by the Board. FINDING OF FACT For the entire appeal period the Veteran's lumbar spine symptoms manifested in forward flexion limited to 60 degrees, at worst, with no ankylosis of the thoracolumbar spine CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for a lumbar spine disability are not met. 38 U.S.C. §§ 1155; 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5237 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. Part 4 (2017). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). The Veteran is presumed to be seeking the maximum possible evaluation. AB v. Brown, 6 Vet. App. 35 (1993). Separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Where functional loss due to pain on motion is alleged, 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). 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). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). As required by 38 C.F.R. § 4.59, 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 opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). The evaluation of the same disability under various diagnoses, known as "pyramiding," is to be avoided. 38 C.F.R. § 4.14. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations, which are potentially applicable, based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the Veteran shows noncompensable limitation of motion, but painful motion and functional impairment are evident, the Veteran is entitled to a 10 percent rating. See DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995), Mitchell v. Shinseki, 25 Vet. App. 32 (2011); VAOPGCPREC 9-98. Under the rating schedule, IVDS (preoperatively or postoperatively) is to be rated either under the Formula for Rating Intervertebral Disc Syndrome based on incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in the higher rating when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, DC 5243. The General Rating Formula for Diseases and Injuries of the Spine provides that, 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, the following ratings will apply. A 20 percent rating is assigned 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 assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243). The criteria also include the following provisions: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero 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 cervical spine is 340 degrees and 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. Note (3): 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. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): 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. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Normal ROM for the thoracolumbar spine is 0 to 90 degrees on forward flexion, and 0 to 30 degrees in all other planes. See 38 C.F.R. § 4.71a, Plate V. Under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5237. 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. An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method resulted in the higher evaluation. The General Rating Formula for Diseases and Injuries of the Spine provides that any neurologic abnormalities be evaluated separately under an appropriate diagnostic code. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Veteran asserts that his lumbar spine disability is more disabling than reflected in his current 20 percent rating. The Veteran's lumbar spine disability currently is rated under DC 5237. A March 2010 VA examination showed lumbosacral strain with scoliosis. The Veteran reported limitation in walking. He denied falling due to his spine condition. He reported stiffness, fatigue, spasms, decreased motion, paresthesia, and numbness. On physical examination there was no evidence of radiating pain on movement. Muscle spasm was absent. There was no tenderness or guarding of movement. The examination was negative for weakness. Muscle tone and musculature were normal. There was a negative straight leg raising test bilaterally. There was no atrophy or ankylosis. Range of motion testing showed that the Veteran's range of motion was within normal limits, and there was no decrease in range of motion testing with repetitive use. During a March 2011 VA examination, the Veteran reported limitation of motion due to his spine and knee conditions. He reported stiffness, fatigue, spasms, and numbness. He reported that he does not experience decreased motion or paresthesia. He reported weakness. He denied reported that his pain occurs constantly and is severe. He reported the pain is exacerbated by stress and relieved by rest. He reported that during flare-ups he does not experience functional impairment or limitation of motion. He reported that in the past, his lumbar spine condition has not resulted in any incapacitation. On physical examination, there was no evidence of radiating pain on movement, muscle spasm, tenderness, guarding of movement, or weakness. Muscle tone and musculature was normal. There was a negative straight leg raise bilaterally. There was no atrophy or ankylosis. Range of motion testing was within normal limits. There was no additional limitation of motion after repetitive use testing. The examiner reported that the joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. A sensory examination showed no sensory deficits due to the lumber spine. There was also no lumbosacral motor weakness. The Veteran's VA and private treatment records show continued complaints of low back pain. Private treatment records from June 2014 to August 2014 show the Veteran reported severe, constant, low back pain. Aggravating factors were reported as movement, positioning, flexing back, extending the back, and lying down. The Veteran denied weak limbs, numbness of the legs/feet, and tingling. On physical examination the Veteran showed no tenderness or spasms and normal lordosis and range of motion. A November 2014 private treatment note indicates that the Veteran's lumbar spine range of motion was limited. A July 2014 VA treatment note indicated that the Veteran's lumbar range or motion was limited by 25 percent due to muscle tightness (limited to approximately 67.5 degrees). His extension was limited due to increase in pain and his left lateral flexion was limited due to muscle tightness. He had 4/5 and 5/5 muscle strength in the right and left extremities respectively. His sensation was intact. A March 2015 private treatment note indicates the Veteran reported weak limbs while sitting and numbness of the leg and feet. The Veteran showed limited bending and stooping. There was tenderness and pain with straight leg raise. In November 2015, the Veteran' private physician completed a lower back disability benefits questionnaire. The physician reported diagnoses of mechanical back pain syndrome, lumbosacral sprain, and radiculopathy. The Veteran reported that during flare-ups he experiences increased pain and is unable to lift more than 25 pounds. Range of motion testing showed flexion to 70 degrees, extension to 18 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. The Veteran's combined range of motion was 158 degrees. A second set of range of motion testing results show forward flexion to 60 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 20 degrees and left lateral rotation to 20 degrees. The Veteran's combined range of motion was 145 degrees. The Veteran did not show additional limitation of range of motion on repetitive use testing. The Veteran did not show guarding or muscle spasm. His gait was normal. Additional symptoms included weakened movement, excess fatigability, pain on movement, and disturbance of locomotion. The Veteran showed full (5/5) muscle strength in the bilateral lower extremities. The examination was negative for ankylosis and muscle atrophy. The Veteran had normal reflex and sensory examination. Straight leg tests were negative. There was no paresthesia and/or dysesthesias. The Veteran reported experiencing numbness. The examination was negative for any other neurological abnormalities and IVDS. A February 2016 private treatment note showed tenderness and limited range of motion in the lumbar spine. The Veteran was afforded an additional VA examination in August 2017. The examiner noted a diagnosis of lumbosacral strain with scoliosis. The Veteran denied flare-ups. He described problems with prolonged sitting, standing, walking, and lying down. The examiner was unable to do range of motion testing because the Veteran was in a wheelchair, experiencing pain during physical examination and unable to cooperate. There was no objective evidence of localized tenderness or pain on palpation of the joint or associate tissue of the lumbar spine. The examination was negative for guarding and muscle spasm. The Veteran had full (5/5) muscle strength in the bilateral lower extremities. His sensory and reflex examinations were normal, and his straight leg tests were negative bilaterally. The Veteran did not have any radicular pain or other signs or symptoms due to radiculopathy. There was no ankylosis of the spine. Here, the preponderance of the evidence shows that the symptoms of the Veteran's lumbar spine disability more clearly approximate the criteria for a 20 percent rating. A 20 percent rating is assigned 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. The medical evidence shows forward flexion, at worse, limited to 60 degrees with a combined range of motion of 145. The Board has considered whether a 40 percent rating is warranted during the appeal period, however, the evidence does not show forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Thus, a schedular rating in excess of 20 percent is not warranted. The Board has also considered whether separate ratings for any associated neurological abnormalities are warranted. Although the November 2015 DBQ completed by the Veteran's private physician summarily reports that the Veteran has a diagnosis of radiculopathy, the preponderance of the evidence is against a finding of radiculopathy or any other neurological deficits related to his lumbar spine disability. Notably, the physician indicated that the radiculopathy was diagnosed in 1987. However, the extensive VA and private treatment notes of record are silent for a diagnosis of radiculopathy. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to a rating in excess of 20 percent for a lumbar spine disability is denied. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs