Citation Nr: 1801471 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 09-44 911 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an evaluation in excess of 20 percent for status post lumbar decompression at L5-S1 with residual degenerative joint disease (DJD) of L5-S1 and intervertebral disc syndrome (IVDS) of the lumbar spine involving the right sciatic nerve. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD T. Joseph, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from October 1985 to October 1988. During his period of service, the Veteran earned the Army Service Ribbon, Marksman Marksmanship Badge (Rifle, M-16), and Sharpshooter Marksmanship Badge (Grenade). This matter comes before the Board of Veterans' Appeals (Board) from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which denied entitlement to a rating in excess of 20 percent for status post lumbar decompression at L5-S1 with residual degenerative joint disease (DJD) of L5-S1 and intervertebral disc syndrome (IVDS) of the lumbar spine involving the right sciatic nerve. This issue was previously remanded in August 2014, April 2016, and November 2016. All necessary development has been accomplished, and therefore appellate review of the claim may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). FINDING OF FACT At no point during the pendency of the claim has the Veteran's service-connected lumbar spine disability manifested of forward flexion of the thoracolumbar spine of 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine; or intervertebral disc syndrome (IVDS) with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The Veteran's entire history is reviewed when assigning disability ratings. See generally 38 C.F.R. § 4.1. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's disability is currently evaluated under DC 5243, applicable to intervertebral disc syndrome (IVDS). 38 C.F.R. § 4.71a. Under DC 5243, IVDS may be rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Under the Formula for Rating IVDS, a 40 percent rating is warranted 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 with incapacitating episodes having a total duration of at least 6 months. 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. Under the General Rating Formula, a 40 percent evaluation is warranted for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine of 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 rating is warranted for unfavorable ankylosis of the entire spine. The criteria under the General Rating Formula for Diseases and Injuries of the Spine are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved. 38 C.F.R. § 4.71a (2017). Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment are to be evaluated separately under an appropriate Diagnostic Code. Id. at Note 1. When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40 (2017); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In December 2006, the Veteran appeared for a VA spine examination. The Veteran reported that he suffered from pain, constant stiffness, weakness with lifting and prolonged standing, and tingling into his right leg and toes. Thoracolumbar spine range of motion showed flexion ended at 75 degrees, with painful motion at 70 degrees; extension ended at 20 degrees, with painful motion at 15 degrees; right lateral flexion ended at 25 degrees, with painful motion at 25 degrees; left lateral flexion ended at 20 degrees, with painful motion at 20 degrees; right rotation ended at 30 degrees, with painful motion at 30 degrees; and left rotation ended at 30 degrees, with painful motion at 30 degrees. The examiner noted the joint function of the spine was additionally limited by pain after repetitive use. The examiner further noted IVDS of the thoracolumbar spine with sciatic nerve involvement. In November 2007, the Veteran appeared for a VA spine examination. The Veteran reported that he suffered from stiffness in his lower back and weakness when climbing stairs. He further reported feeling pain constantly. Thoracolumbar spine range of motion showed flexion ended at 90 degrees; extension ended at 30 degrees; right lateral flexion ended at 30 degrees; left lateral flexion ended at 30 degrees; right rotation ended at 25 degrees, with painful motion at 25 degrees; and left rotation ended at 25 degrees, with painful motion at 25 degrees. The examiner noted the joint function of the spine was additionally limited by 12 degrees due to pain after repetitive use. The examiner noted IVDS of the thoracolumbar spine with sciatic nerve involvement. In a March 2008 lay statement, the Veteran reported that he had continuous pain on the right side of his body, with no feeling from his neck to his toes. The Veteran stated that he also felt stiffness and sharp pain in his lower back most of the time. He further stated that he was unable to sit or stand for long periods of time. The Veteran reported that he was unable to sleep at night and had difficulty getting out of bed in the morning. The Veteran appeared for a VA spine examination in June 2009. The Veteran reported that he had pain in the center of his back, which radiated down his right leg to his foot. The Veteran further reported worsening pain, with soreness and stiffness. Range of motion testing showed flexion ended at 90 degrees; extension ended at 30 degrees, with painful motion at 30 degrees; right lateral flexion ended at 30 degrees; left lateral flexion ended at 30 degrees; right lateral rotation ended at 40 degrees; and left lateral rotation ended at 40 degrees. The examiner noted no additional limitation in range of motion after repetitive-use testing. Pursuant to the August 2014 remand instructions, the Veteran underwent a VA back examination in January 2015. The Veteran complained of muscle spasms at the time of examination. The examiner noted that Veteran's ranges of motion for forward flexion, extension, right and left lateral flexion, and right and left lateral rotation were all normal. The examiner noted pain on motion on forward flexion. The examiner noted no additional limitation in range of motion after repetitive-use testing. The Veteran underwent a VA back examination in March 2016. The Veteran reported that he was unable to play basketball or participate in sporting activities nor sit or walk for prolonged periods of time. He described his flare-ups as stiffness and pain, which radiated down his legs. The examiner was unable to test the Veteran's range of motion, as he had been involved in a motorcycle accident in January 2016 that resulted in a below-the-knee amputation. As the Veteran required the use of crutches, he was unable to stand independently for testing. The examiner did, however, note IVDS of the thoracolumbar spine. The examiner also indicated that the Veteran had been prescribed bed rest in the past 12 months, having a total duration of less than one week. Pursuant to the April 2016 remand instructions, the Veteran appeared for a VA back examination in May 2016. Initial range of motion showed forward flexion ended at 80 degrees; extension ended at 0 degrees; right lateral flexion ended at 20 degrees; left lateral flexion ended at 20 degrees, right rotation ended at 30 degrees; and left rotation ended at 30 degrees. The examiner noted pain on forward flexion and extension, but it did not result in nor cause functional loss. The examiner also noted pain on weight bearing. The Veteran was unable to perform repetitive-use testing due to pain, which was noted to be medically consistent with the Veteran's statements describing functional loss with repetitive use over time. Pursuant to the November 2016 remand instructions, the Veteran appeared for a VA back examination in February 2017. The Veteran reported constant pain, but no flare-ups. The examiner stated that the Veteran could only do one repetition and was not able to repeat. The examiner stated that there was "no passive. No overpressure ROM performed or pressure applied to test resistance directly." The examiner noted that the Veteran was continuing to heal from below-the-knee amputation and required rest and restoration. The examiner further stated that the Veteran's amputation would always affect his ambulation status and stance, as well as the biomechanics of all major joints. The examiner opined that the Veteran may or may not be able to attain a base of support to achieve maximal spine motion. The Veteran was scheduled for a subsequent VA back examination in June 2017. The Veteran reported that the inflammation was worse in his right lower back with locking. He further reported that it had gotten to where he could hardly walk or get out of bed. The Veteran stated that he was unable to bend over or to the side at times. Initial range of motion showed forward flexion ended at 75 degrees; extension ended at 20 degrees; right lateral flexion ended at 25 degrees; left lateral flexion ended at 25 degrees, right rotation ended at 25 degrees; and left rotation ended at 25 degrees. The examiner noted no additional limitation in range of motion after repetitive-use testing. The additional medical and lay evidence includes VA and private treatment records, as well as the Veteran's own statements, which show that the Veteran's symptoms remained relatively constant throughout the appeal period. Based on the medical and lay evidence of record, the Board finds that the Veteran does not meet the criteria for a disability rating in excess of 20 percent. There is no evidence that the Veteran's forward flexion of the thoracolumbar spine was limited to 30 degrees or less nor is there evidence of favorable ankylosis of the entire thoracolumbar spine at any time. Without such evidence, a rating in excess of 20 percent cannot be assigned. A rating in excess of 20 percent is also not warranted for the lumbar spine disability under the provisions of Diagnostic Code 5243. The preponderance of the evidence establishes that the service-connected lumbar spine disability is not manifested by IVDS productive of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. The evidence shows that the Veteran had one instance of bed rest, as prescribed by a physician, with duration of less than one week. For these reasons, the Board finds that a disability evaluation in excess of 20 percent for the lumbar spine disability is not warranted under Diagnostic Code 5243. 38 C.F.R. § 4.71a. The Board has considered the totality of the symptoms of the Veteran's lumbar spine disability and they have been factored into the Board's decision to continue the Veteran's 20 percent disability rating. Even considering DeLuca, while the Veteran may have symptoms such as stiffness, soreness, and pain with prolonged standing and sitting, the Veteran's symptoms have been considered in the rating above and indeed are part and parcel of the 20 percent rating that he is currently assigned. DeLuca, supra. Thus, the Board concludes that an evaluation in excess of 20 percent is denied. The Board is grateful for the Veteran's honorable service, and this decision is not meant to detract from that service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits"); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (recognizing that "[w]hether submitted by the claimant or VA . . . the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). Accordingly, unfortunately, the Board concludes that a higher rating is not warranted at this time. ORDER Entitlement to an evaluation in excess of 20 percent for status post lumbar decompression at L5-S1 with residual degenerative joint disease (DJD) of L5-S1 and intervertebral disc syndrome (IVDS) of the lumbar spine involving the right sciatic nerve is denied. ____________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs