Citation Nr: 1802076 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-14 731 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an initial rating in excess of 10 percent for degenerative disc disease of the lumbar spine, prior to August 10, 2016, and in excess of 20 percent, thereafter. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1983 to July 2010. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which granted service connection for the lumbar spine disability and assigned an initial 10 percent rating, effective August 1, 2010. In a September 2016 rating decision, the RO granted an increase to 20 percent, effective August 10, 2016. As this compensable rating constituted less than the maximum benefit allowed by law and regulation, the claim for an initial higher rating in relation to the service-connected lumbar spine disability, remains on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). Additional VA treatment records received after the most recent supplemental statement of the case in August 2016 were either not relevant or duplicative of evidence already of record. Thus, a remand for RO consideration or waiver from the Veteran is unnecessary. See 38 C.F.R. § 20.1304 (2017). FINDINGS OF FACT 1. Prior to August 10, 2016, the Veteran's lumbar spine disability was manifested by forward flexion greater than 60 degrees with additional functional impairment due to pain; but without ankylosis or incapacitating episodes with physician-prescribed bed rest. 2. From August 10, 2016, the Veteran's lumbar spine disability was manifested by forward flexion greater than 30 degrees, but less than 60 degrees, with functional impairment due to pain; but without ankylosis or incapacitating episodes with physician-prescribed bed rest. CONCLUSIONS OF LAW 1. Prior to August 10, 2016, the criteria for an initial 20 percent rating, but not higher, for the degenerative disc disease of the lumbar spine, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2017). 2. From August 10, 2016, the criteria for an initial 40 percent rating, but not higher, for the degenerative disc disease of the lumbar spine, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5242 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Higher Ratings Disability ratings are determined by applying a schedule of reductions in earning capacity from specific injuries or a combination of injuries that is based upon the average impairment of earning capacities. 38 U.S.C. § 1155 (2012). Each disability must be viewed in relation to its entire history, with emphasis upon the limitations proportionate to the severity of the disabling condition. 38 C.F.R. § 4.1 (2017). When rating the Veteran's service-connected disability, the entire medical history must be reviewed. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board must also fully consider the lay assertions of record. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Where there is a question as to which of the two disability evaluations is applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). After careful consideration of the evidence of record, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Staged ratings apply to both initial and increased rating claims. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases where the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2017); DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. A VA examination is adequate only when the examiner discusses whether a loss in the range of motion is attributable to pain. See Mitchell, 25 Vet. App. at 43-44; DeLuca, 8 Vet. App. at 202. The examiner must also expressly comment on active and passive range of motion testing, and weight-bearing and non-weight-bearing described in the final sentence of 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). Service connection was granted for degenerative disc disease (DDD) of the lumbar spine in a March 2011 rating decision, at an initial 10 percent rating, effective August 1, 2010, under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242. The Veteran's lumbar spine disability is rated under the General Rating Formula for Diseases and Injuries of the Spine (Diagnostic Codes 5235 to 5243). Ratings under the General Rating Formula are made 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. See 38 C.F.R. § 4.71a (2017). Diagnostic Code 5242 evaluates lumbar spine disabilities with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine. A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, or 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 body height. Id. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or 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 contour such as scoliosis. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. Any associated objective neurologic abnormality is to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, DC 5237, Note 1. For VA compensation purposes, 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 combined normal range of motion of the thoracolumbar spine is 240 degrees. Id., General Rating Formula, Note (2) (2017). With respect to joints, in particular, the disability factors reside in reductions of normal excursion of movements in different planes. Inquiries will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45 (2017). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca, 8 Vet. App. at 202. Intervertebral disc syndrome (IVDS) is evaluated under either the General Rating Formula or under the IVDS Formula, whichever results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. An incapacitating episode is defined as 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, Formula for Rating IVDS Based on Incapacitating Episodes (2017). For the reasons that follow, the Board finds that higher ratings are warranted. Analysis At a September 2010 VA spine examination, the Veteran reported low back pain shooting down both legs since 2007. He reported his pain symptoms have progressively worsened over the years, experiencing daily constant moderate to severe sharp or throbbing pain in the lower back. The Veteran denied flare-ups. The examiner noted back pain, with radiation of pain, leg paresthesias and numbness. The Veteran exhibited bilateral spinal tenderness, but with normal gait, and without muscle spasms or guarding. No ankylosis or IVDS was diagnosed. Magnetic resonance imaging (MRI) revealed chronic spondylosis, with disc bulge that produced nerve root impingement and marked degenerative stenosis in multiple levels. On physical examination of the spine, there was bilateral thoracolumbar tenderness observed. No spinal ankylosis was present. Straight leg raise test was negative. No abnormal spinal curvature was noted. Muscle spasms were present, but were not severe enough to affect gait or spinal contour. The Veteran's range of motion test results included forward flexion to 73 degrees, extension to 20 degrees, lateral flexion to 25 degrees, bilaterally, and lateral rotation to 30 degrees, bilaterally. Objectively, pain with motion was noted, including following the repetitive motion test, but without additional limitations in ranges of motion. The examiner noted the Veteran's lumbar spine disability caused mild to moderate effects on chores, exercise, and traveling; limiting walking to 1 mile. Objectively, no neurologic symptoms were noted in the right lower extremity associated with the lumbar spine. Gait was normal. In the Veteran's April 2011 notice of disagreement, he reported severe problems with low back pain. He indicated the pain radiated down his buttocks and into both legs. His activities of daily living were limited and he had difficulty sitting, walking or picking things up. Private treatment records from 2010 to 2013 indicated that the Veteran received continuous treatment for chronic lumbar spine pain, including epidural steroid injections, without much reported relief. The examiners also observed continuing degenerative changes, with disc collapse reported. An April 2011 private orthopedic record stated that the feasibility of epidural steroid injection treatments to relieve his symptoms in the longer term was "quite slim." No objective ranges of motion results were reported. Private treatment records from 2014 to 2016 indicated that the Veteran reported that his chronic lumbar spine pain progressively worsen over a six year period. The Veteran underwent a second disc-related surgery in 2015 to relieve his chronic lumbar spine pain, but no improvement was noted. The Veteran reported on his March 2014 VA Form 9 that his lower back pain has been a "chronic problem for at least the last ten years," with pain radiating across his lower back. See March 2014 VA Form 9. In August 2016, the Veteran was afforded another VA examination for his lumbar spine disability. The Veteran reported constant low back pain with radicular pain when he walks. He described his functional impairment was that he was unable to sit or stand for more than 10 minutes or unable to lift more than 15 pounds. The Veteran denied flare-ups. Objectively, the range of motion test resulted in forward flexion to 45 degrees, extension to 10 degrees, lateral flexion to 15 degrees, bilaterally, and lateral rotation to 30 degrees, bilaterally. The Veteran exhibited pain on all ranges of motion maneuvers. The examiner observed pain on weightbearing testing as well as evidence of localized tenderness. The Veteran was able to perform repetitive-use testing, without additional loss in function or ranges of motion. Pain noted on exam but did not result in/cause functional loss. He exhibited guarding with an abnormal gait and in spinal contour. The examiner opined that the Veteran has less movement than normal due to his additional injuries. The examiner indicated that the examination findings were neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The Veteran reported using a cane as an assistive device occasionally. No ankylosis or IVDS was diagnosed. The Veteran did not have any other neurologic abnormalities or findings related to a thoracolumbar spine (back) condition (such as bowel or bladder problems/pathologic reflexes). After reviewing the record and resolving all reasonable doubt in favor of the Veteran, the Board finds that the criteria for an initial 20 percent rating have been met, for the appeal period prior to August 10, 2016. In order to warrant an evaluation of 20 percent or higher prior to August 10, 2016, there would have to be, at a minimum, forward flexion not greater than 60 degrees or a combined range of motion of the thoracolumbar spine not exceeding 120 degrees. In this case, however, the 2010 examination report shows the Veteran was able to achieve forward flexion to 73 degrees, which well exceeds 60 degrees. His combined range of motion was to 203 degrees, which well exceeds 120 degrees. Also, while paravertebral muscle spasm was present, it did not result in abnormal gait or contour. Despite this demonstrated range of lumbar spine motion, the examiner stated that repetitive use of the lumbar spine caused additional limited motion, due to fatigue and pain. The examiner specifically noted the Veteran's lumbar spine disability caused mild to moderate effects on chores, exercise, and traveling; and limited walking to 1 mile. The Board also notes that the Veteran has credibly reported daily, severe pain and that limit his ability to perform normal movements and activities. The treatment records are consistent for reports of severe, chronic low back pain. Thus, in consideration of the additional functional impairment upon flare-up and repetitive use, the Board finds that the disability picture for the Veteran's lumbar spine degenerative disc disease, more nearly approximates the criteria for a 20 percent disability rating. See DeLuca v. Brown, 8 Vet. App. 202 (1995); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. A higher rating under the General Formula for Rating Back Injuries and Disabilities would require limitation of forward flexion to 30 degrees, but there were no reports of limitation of motion approximating that level prior to August 10, 2016. A higher rating is are not available under the Formula for Rating IVDS Based on Incapacitating Episodes, as the Veteran denied any episodes of physician-prescribed bed rest in the past 12 months. See 38 C.F.R. § 4.71a, DC 5243. The Board further notes that no additional disability has been clinically demonstrated due to neurologic impairment such as right lower extremity radiculopathy or bowel or bladder dysfunction related to the lumbar spine. Accordingly, an additional rating for neurologic impairment of the right lower extremity is not warranted. A separate 10 percent rating for left lower extremity radiculopathy is already in effect. A 20 percent disability rating, and no higher, is warranted prior to August 10, 2016. From August 10, 2016, the evidence supports a higher rating of 40 percent. The August 2016 VA examination indicated forward flexion to 45 degrees, indicating his lumbar spine disability has worsened. Upon examination, pain was noted on active range of motion testing, repetitive-use testing, and weightbearing testing. The Veteran competently reported functional impairments. The examiner noted functional loss. When considering DeLuca factors, such as pain and functional loss, the Board concludes that a 40 percent is warranted as of August 10, 2016. The Board is granting the maximum rating based on limitation of motion for this appeal period; higher ratings require ankylosis, which has not been shown. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). IVDS with incapacitating episodes lasting at least 6 weeks have not been shown during the entire appeals period, and thus, a higher rating is also not warranted on this basis. Finally, the Veteran is already service-connected for associated neurological impairment in both lower extremities; the matter of entitlement to higher ratings for such is not before the Board. Accordingly, an initial 20 percent rating, but no higher, is warranted prior to August 10, 2016, and a 40 percent rating, but no higher, thereafter. There are no additional expressly or reasonably raised issues presented on the record. ORDER Prior to August 10, 2016, a 20 percent rating, but not higher, for degenerative disc disease of the lumbar spine, is granted. From August 10, 2016, a 40 percent rating, but not higher, for degenerative disc disease of the lumbar spine, is granted. ____________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs