Citation Nr: 1802955 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 12-00 275A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a rating in excess of 10 percent for degenerative arthritis of the lumbar spine, with intervertebral disc syndrome (IVDS). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. Gabay, Associate Counsel INTRODUCTION The Veteran served in the United States Marine Corps from September 1978 to August 1987, and in the United States Army National Guard from September 2005 to November 2006, and from July 2009 to November 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which continued the Veteran's 10 percent disability evaluation. This matter was previously remanded by the Board in September 2016. FINDING OF FACT The Veteran's degenerative arthritis of the lumbar spine with IVDS has been manifested by combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; no incapacitating episodes in the last 12 months; and painful motion upon examination. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for degenerative arthritis of the lumbar spine with IVDS are not met. 38 U.S.C. §§ 1110, 1131, 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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) (applying Scott to duty to assist argument). Merits of the Claim Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability, and, above all, coordination of the rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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 (2017); DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are considered in conjunction with the Diagnostic Codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2017). When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). The Veteran seeks an increased rating in excess of 10 percent for degenerative arthritis of the lumbar spine with IVDS. The Veteran's condition is currently evaluated as 10 percent disabling under Diagnostic Code 5243 for loss of range of motion and painful motion. Under the current version of the rating criteria, the General Rating Formula provides for the disability ratings under Diagnostic Codes 5235 to 5243, unless the disability rated under Diagnostic Code 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, for diseases and injuries of the spine. 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; a combined range of motion of the thoracolumbar spine is 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 of the height. 38 C.F.R. § 4.71a, Diagnostic Code 5237. A 20 percent rating is assigned when there is forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; a 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. Id. A 40 percent rating is warranted for limitation of forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. Id. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are rated separately under an appropriate diagnostic code. Id. at Note (1). The Board notes that normal range of motion (ROM) of the thoracolumbar spine encompasses flexion to 90 degrees and extension, bilateral lateral flexion, and bilateral rotation to 30 degrees. The normal combined ROM of the thoracolumbar spine is 240 degrees. Id. at Plate V; see also DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45 (2017) (concerning additional symptoms (e.g., painful motion and functional loss due to pain) when rating a claim based upon limitation of motion). Additionally, the rating criteria under the General Rating Formula provides a separate evaluation for any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2017) (Note 1). Meanwhile, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that incapacitating episodes having a total duration of at least one week, but less than 2 weeks, during the past 12 months warrants a 10 percent evaluation. A 20 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months. A 40 percent evaluation is warranted when there are 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 when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. In this case, the Veteran was initially assigned a 10 percent rating for degenerative arthritis of the lumbar spine in a May 2008 rating decision for flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees, with painful motion. The Veteran filed for an increased rating in February 2010. The Veteran underwent a VA examination conducted by QTC Medical Services in April 2010 in which he reported a back condition that had existed since an in-service football injury 1980. He reported being able to walk without limitation, but reported symptoms including constant pain, stiffness, fatigue, spasms, decreased motion, paresthesia, and numbness. He indicated the pain level to be severe and added that it is exacerbated by physical activity. The Veteran stated that he has never been hospitalized for the condition or experienced any incapacitating episodes over the previous 12 months. Examination revealed evidence of radiating pain on movement and tenderness on the spinal contour. Range of motion testing revealed flexion to 80 degrees, extension to 30 degrees, right and left lateral flexion to 20 degrees, and right and left rotation to 30 degrees. Combined range of motion was 210 degrees. The joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. The Veteran's condition, which had originally been diagnosed as degenerative arthritis of the lumbar spine, was changed to degenerative arthritis of the lumbar spine with IVDS. The condition was noted to impair sleep, limit his abilities at work, and limit his exercise. Additionally, a neurological examination revealed no sensory defects or motor weakness and normal cutaneous reflexes. An October 2010 private treatment record noted the Veteran to have a normal gait, but stooped posture. Examination found flexion and extension to be diminished. An MRI showed L4-5 disc protrusion with a ventral mass defect, but without demonstrated nerve root displacement. There was no significant central stenosis or foraminal encroachment. There was also mild L5-S1 small disk protrusion without demonstrated root displacement, canal narrowing, or foraminal narrowing. A February 2011 imaging study revealed mild diffuse disk bulge without significant central canal or foraminal stenosis at L2-3; mild diffuse disk bulge contributing to right greater than left foraminal stenosis and mild flattening of the ventral thecal sac at L3-4; moderate concentric disk bulge with flattening of the ventral sac as well as mild bilateral foraminal stenosis at L4-5; and mild disk bulge with no significant central canal stenosis and minimal bilateral foraminal stenosis at L5-S1. The clinician diagnosed the Veteran with multilevel lumbar spondylosis. The Veteran underwent a VA examination in December 2013 with complaints of being unable to stand, sit, or lay for an extended period of time. The Veteran described a worsening condition over the past two years with increased pain. He reported only being able to sit in a car for 30 or 45 minutes, and no longer being able to engage in sexual intercourse. His back pain was such that he had difficulty sleeping and experienced daytime fatigue. He described previously being an active runner, but being unable to run as of the date of the examination. This caused him to gain a reported 40 to 50 pounds. Examination revealed flexion limited to 70 degrees with the remaining ranges of motion limited to 15 degrees. The combined range of motion was 145 degrees. Pain was noted with all range of motion testing. Flexion was limited to 65 degrees with repetitive-use testing; however, the other ranges of motion did not change. There was no tenderness to palpation, guarding, or muscle spasms. Muscle strength testing was normal. The neurological examination was within normal limits. Gait and posture were within normal limits. The examiner noted there to be contributing factors of pain, weakness, fatigability, and incoordination, but no additional limitation of functional ability of the thoracolumbar spine. The Veteran was found to not have any additional neurological abnormalities, including bowel or bladder problems and pathologic reflexes, relating to his service-connected condition. The examiner diagnosed the Veteran with degenerative disc disease, lumbar spine. A November 2016 physical therapy consultation note states that the Veteran reported having lower back pain for 30 years, the pain being worse at night when he is trying to sleep. An imaging study found no evidence of fracture, spondylolysis, or spondylolisthesis. The clinician noted normal alignment, but mild intervertebral disc space narrowing and mild arthropathy. The clinician diagnosed the Veteran with degenerative disc disease at the L4-5 level and mild facet arthropathy within the inferior lumbar spine, as well as atherosclerotic vascular disease. After a Board remand, the Veteran underwent another VA examination in May 2017 during which he was again diagnosed with degenerative arthritis of the lumbar spine with IVDS. He reported worsening back pain with radiation bilaterally with numbness to bilateral anterior thighs and occasional stabbing and shooting pain down the posterior thighs to the calves. He reported no incapacitation related to his back. Range of motion testing revealed flexion to 80 degrees, extension to 20 degrees, left and right lateral flexion to 20 degrees, and left and right lateral rotation to 25 degrees. The combined range of motion was 190 degrees. The examiner noted that the Veteran's loss of range of motion did not contribute to functional loss. There was no evidence of pain on weight-bearing, localized tenderness, or pain on palpation. The Veteran was able to perform repetitive use testing without additional functional loss. He reported additional contributing factors of his condition to be interference with standing and sitting. The Veteran was found to not have any additional neurological abnormalities, including bowel or bladder problems and pathologic reflexes, relating to his service-connected condition. Throughout the period on appeal, the record fails to show that the Veteran met the requirements for a rating in excess of 10 percent under Diagnostic Code 5243. Diagnostic Code 5243, as noted above, provides ratings in excess of 10 percent where there is evidence of IVDS with incapacitating episodes. However, the Veteran has not argued, and the record does not reflect, that he has had incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks, during any period on appeal. Therefore, a 20 percent rating under Diagnostic Code 5243 is not for application, and the Veteran is not entitled to a rating in excess of 10 percent under that diagnostic code. The Board has considered whether a higher rating is warranted under Diagnostic Codes 5235 through 5243. However, the Veteran has not demonstrated forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; a 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 necessary to warrant a 20 degree rating. Furthermore, the record is absent for evidence of ankylosis of any portion of the thoracolumbar spine. Additionally, Diagnostic Code 5003 provides ratings for arthritis. 38 C.F.R. § 4.71a. Diagnostic Code 5003 directs the rater to first determine if a rating is warranted under the criteria for rating limitation of motion and provides that if the amount of limitation of motion is noncompensable under the criteria for the affected joint, then the minimum rating for the affected joint is to be assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5003. However, a rating under Diagnostic Code 5003 cannot be combined with a rating based on limitation of motion. Therefore, no higher or separate rating is warranted pursuant to Diagnostic Code 5003. The Board has considered and weighed the Veteran's assertions and clinical findings of functional impairment of limitation on prolonged sitting, standing, and running. However, such functional impairment has been considered in arriving at the 10 percent rating for limitation of motion of the lumbar spine based on range of motion measurements, to include as due to objective evidence of pain and subjective complaints of painful motion resulting in the functional impairment described above. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca at 206-07. The Board further finds that separate ratings for neurological impairment associated with the Veteran's service-connected degenerative arthritis of the lumbar spine were grante for the right and lower extremities effective from August 2, 2016, and May 1, 2017, respectively. Additionally, The Board notes that the Veteran denied any bowel or bladder involvement in the April 2010, December 2013, and May 2017 VA examinations. Thus, there is no objective evidence of additional associated neurologic abnormalities and the preponderance of the evidence is against a finding of such impairments associated with the Veteran's lumbar disability that have not already been addressed. In making its determinations in this case, the Board has carefully considered the Veteran's contentions with respect to the nature of his service-connected degenerative arthritis of the lumbar spine with IVDS, and notes that his lay testimony is competent to describe certain symptoms associated with this disability. The Veteran's history and symptom reports have been considered, including as presented in the medical evidence discussed above, and have been contemplated by the disability rating for which the Veteran has been found to be entitled to by the Board. Moreover, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the service-connected disability at issue. As such, while the Board accepts the Veteran's statements with regard to the matters he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected condition at issue. The Board therefore finds that the criteria for a higher rating for the Veteran's degenerative arthritis of the lumbar spine, with IVDS, have not been met at any time during the appeal period. As a preponderance of the evidence is against the assignment of a higher rating, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Finally, the Court has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In the instant case, the issue of TDIU has not been raised. ORDER A rating in excess of 10 percent for degenerative arthritis of the lumbar spine, with IVDS, is denied. ____________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs