Citation Nr: 1802792 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 13-00 088A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES Entitlement to an evaluation in excess of 10 percent for service-connected degenerative changes, residuals of shell fragment wound (SFW) sacroiliac joint with scar, prior to August 8, 2017, and in excess of 20 percent from August 8, 2017 to the present. REPRESENTATION Veteran represented by: Ralph J. Branch, Attorney ATTORNEY FOR THE BOARD C. O'Donnell, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1968 to August 1970. This matter comes before the Board of Veteran's Appeals (Board) on appeal from an October 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. On the Veteran's Substantive Appeal dated January 2013, he requested a hearing before a Veterans Law Judge. However, he cancelled his hearing request in October 2017. Accordingly, his request for a hearing is considered to be withdrawn and his claim will be reviewed based on the evidence of record. See 38 C.F.R. § 20.704(e) (2016). In a September 2017 rating decision, the RO assigned a 20 percent evaluation for the Veteran's service-connected degenerative changes, residuals of SFW sacroiliac joint with scar, with an effective date of August 8, 2017. However, the Veteran is presumed to seek the maximum available benefits, therefore, this issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDINGS OF FACT 1. For the period on appeal prior to August 8, 2017, the Veteran's symptomatology more closely approximates the criteria for a 20 percent disability rating. 2. As of August 8, 2017, the Veteran's forward flexion of the thoracolumbar spine was greater than 30 degrees, and he did not experience ankylosis of the thoracolumbar spine or symptoms more closely approximating the next higher level of disability. CONCLUSIONS OF LAW 1. The criteria for a rating of 20 percent, but no higher, for degenerative changes, residuals of SFW sacroiliac joint with scar, prior to August 8, 2017, have been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1-4.3, 4.7, 4.10, 4.40, 4.45, Diagnostic Codes 5242, 5003, 5243 (2017). 2. The criteria for a rating in excess of 20 percent for degenerative changes, residuals of SFW sacroiliac joint with scar have not been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1-4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242, 5003 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has considered the Veteran's claim and decided entitlement based on the evidence or record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2016); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). The Veteran's service-connected degenerative changes, residuals of SFW sacroiliac joint with scar is rated under Diagnostic Code 5242, for degenerative arthritis of the spine. As a result, the Veteran's condition can be rated under Diagnostic Code 5003 or under the General Rating Formula. Under the General Rating Formula, a 10 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 of the height. A 20 percent evaluation 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 evaluation is assigned for forward flexion of the thoracolumbar spine at 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Degenerative arthritis is evaluated under Diagnostic Code 5003, which provides that degenerative arthritis, when substantiated by X-rays, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Additionally, under Diagnostic Code 5003, a 10 percent rating is warranted with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joints. A 20 percent evaluation is warranted with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Diagnostic Code 5243, provides that intervertebral disc syndrome (IVDS)(preoperatively or postoperatively) be rated either under the General Rating Formula for Disease and Injuries of the Spine (General Rating Formula), 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. 38 C.F.R. § 4.71a, DC 5243. The Formula for Intervertebral Disc Syndrome provides for a 10 percent disability rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent disability rating is awarded for disability with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, a 40 percent evaluation is in order. Finally, a maximum schedular rating of 60 percent is assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 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. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. III. Analysis A September 2010 VA examination report indicates that the Veteran experienced severe flare-ups every morning in his spine that lasted for hours. The Veteran did not have ankylosis of either the cervical or thoracolumbar spine. The Veteran did not have thoracolumbar spinal spasms or atrophy. However, the Veteran experienced guarding, pain with motion, and tenderness. The examiner reported that the Veteran's muscle spasm, localized tenderness and guarding were not severe enough to cause abnormal gait or abnormal spinal contour. On thoracolumbar spine range of motion testing, the Veteran's flexion was measured at 90 degrees, extension at 25 degrees, left and right lateral flexion at 30 degrees, and left and right lateral rotation at 30 degrees. There was evidence of pain following repetitive motion testing, however, the examiner reported that there were no additional limitations after three repetitions of range of motion testing. Further, the examiner reported that the Veteran had intervertebral disc syndrome (IVDS) with incapacitating episodes that occurred approximately 60 times in the prior 12 month period, which lasted up to a day in duration. A May 2011 private treatment note indicates that the Veteran experienced lower back pain and numbness. See May 2011 Private Medical Records. The physician reported that the Veteran had normal gait. The Veteran's lumbar spine was normal to inspection and palpation, and there was no evidence of muscle spasms. The Veteran had lumbar spine flexion to 75 degrees and full extension to 35 degrees. Moreover, his lumbar spine strength, reflexes and sensation were normal. In August 2011, the Veteran was treated for back pain, which he described as severe. See August 2011 Private Medical Records. The physician indicated that the Veteran had moderate tenderness in his bilateral lumbar paravertebral area. A July 2014 VA examination report indicates that the Veteran was diagnosed with degenerative arthritis of the spine, lumbar spondylosis, and lumbar spinal stenosis. The Veteran reported that he did not experience flare-ups that impacted the function of his thoracolumbar spine. On range of motion testing, flexion was measured at 70 degrees. Extension was measured at 30 degrees or greater, and there was evidence of pain on extension at 15 degrees. Right and left lateral flexion was measured at 30 degrees or greater, and there was evidence of pain on each at 30 degrees. Right and left lateral rotation was measured at 30 degrees or greater, and there was evidence of pain on each at 20 degrees. After repetitive use testing, the Veteran's forward flexion was measured at 70 degrees, extension at 25 degrees, right and left lateral flexion at 30 degrees or greater, and right and left rotation at 30 degrees or greater. The Veteran reported no additional limitation in range of motion of thoracolumbar spine after repetitive-use testing. The Veteran did not experience muscle spasm of the thoracolumbar spine resulting in abnormal gait or abnormal spinal contour, and the Veteran did not experience guarding. The Veteran did not have ankylosis or intervertebral disc syndrome. The Veteran reported that he occasionally used a cane. An August 2017 VA examination report indicates that the Veteran was diagnosed with degenerative arthritis of the spine. The Veteran reported that he did not experience flare-ups of the thoracolumbar spine. As for functional loss, the Veteran reported that he was unable to bend very well. On range of motion testing, the Veteran's forward flexion was measured at 80 degrees, extension at 30 degrees, right lateral flexion at 25 degrees, left lateral flexion at 30 degrees, right lateral rotation at 30 degrees and left lateral rotation at 30 degrees. There was evidence of pain with weight bearing but not with non-weight bearing. Moreover, there was no evidence of pain on passive range of motion testing. The examiner indicated that there was additional loss of function or range of motion after three repetitions. To that end, the Veteran's forward flexion was 70 degrees, extension at 30 degrees, right lateral flexion at 20 degrees, left lateral flexion at 30 degrees, right lateral rotation at 30 degrees, and left lateral rotation at 30 degrees. The examiner reported that pain, fatigue, and a lack of endurance all caused the Veteran to experience functional loss. The examiner indicated that he Veteran experienced muscle spasm of the thoracolumbar spine that did not result in abnormal gait or abnormal spinal contour. However, the Veteran did not experience guarding. The Veteran had normal strength on hip flexion. The examiner indicated that the Veteran did not have ankylosis of the spine, nor did he have intervertebral disc syndrome of the thoracolumbar spine. Further, the examined reported that the Veteran regularly used a cane. The aforementioned evidence does not show that during the period on appeal the Veteran had forward flexion of 60 degrees or less. Moreover, the Veteran's combined range of motion of the thoracolumbar spine was consistently greater than 120 degrees. Further, the record reflects that the Veteran did not experience muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Nor does the record indicate that the Veteran experienced ankylosis. Thus, with regard to the Veteran's symptomatology in relation to the General Rating Formula, the Board finds that his service-connected degenerative changes, residuals of SFW sacroiliac joint with scar were more productive of the symptoms associated with the criteria of a 10 percent rating. As for the Veteran's degenerative changes, residuals of SFW sacroiliac joint with scar with regard to Diagnostic Code 5003, the record does not reveal X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Further, the record reflects that the September 2010 VA examiner opined that the Veteran experienced IVDS. With regard to the Veteran's IVDS, the record reflects that at no time during the period on appeal did the Veteran experience incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months, which is contemplated by a 20 percent rating under Diagnostic Code 5243. Rather, the September 2010 VA examination report indicates that the Veteran experienced incapacitating episodes 60 times in the prior 12 month period, which lasted up to a day in duration. As a result, the record reflects that the Veteran would be entitled to a rating in excess of 10 percent under Diagnostic Code 5243. 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). 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. With regard to functional loss, the Board notes the September 2010 VA examiner's report that the Veteran experienced severe flare-ups every morning in his spine that lasted for hours. The Veteran reported that, during flare-ups, he was unable to do anything and had to rest. Considering the severity and duration of the Veteran's flare-ups, the Board finds that the Veteran's additional functional loss warrants an increased evaluation to the next highest applicable diagnostic code. See 38 C.F.R. § 4.40 and 4.45. Thus, based on the evidence of record, lay and medical, the Board finds that the Veteran's overall disability picture warrants an evaluation of 20 percent, but no higher, for the period on appeal prior to August 8, 2017. As for the period on appeal from August 8, 2017, the record reflects that the Veteran did not have IVDS, ankylosis, or X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Additionally, with regard to range of motion testing, an August 2017 VA examination report reveals that the Veteran's forward flexion was measured at 70 degrees. Moreover, his combined range of motion of the thoracolumbar spine was greater than 120 degrees. Further, the record reflects that the Veteran did not experience muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Additionally, the Veteran reported that he did not experience flare-ups. As a result, the Board finds that the symptomatology associated with the Veteran's service-connected degenerative changes, residuals of SFW sacroiliac joint with scar were most productive of the criteria contemplated in a 20 percent rating under the General Rating Formula, and that the Veteran would not be entitled to a higher rating under any other diagnostic codes. Again, the Board has considered the evidence of record, considering the Veteran's assertions of additional functional loss, pain on motion, and flare-ups. However, the Board finds that a no time during the period on appeal, has the Veteran's level of disability more closely approximated the criteria for a rating in excess of 20 percent. ORDER Entitlement to an evaluation of 20 percent, but no higher, for service-connected degenerative changes, residuals of SFW sacroiliac joint with scar, prior to August 8, 2017, is granted. Entitlement to an evaluation in excess of 20 percent for service-connected degenerative changes, residuals of SFW sacroiliac joint with scar, as of August 8, 2017, is denied. ____________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs