Citation Nr: 1804216	
Decision Date: 01/22/18    Archive Date: 01/31/18

DOCKET NO.  12-35 967	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUES

1. Entitlement to an evaluation in excess of 10 percent for lumbar degenerative changes for the period from January 31, 2013 to September 26, 2016.

2. Entitlement to an evaluation in excess of 20 percent for lumbar degenerative changes since September 26, 2016. 


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

M. Carsten, Counsel


INTRODUCTION

The Veteran served on active duty from November 1987 to March 1991. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky.

In February 2015, a videoconference hearing was held before the undersigned Veterans Law Judge. 

In May 2015, the Board denied entitlement to an evaluation in excess of 10 percent for lumbar degenerative changes prior to January 31, 2013. The Veteran did not appeal this decision and it is final. See 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2017). In May 2015, the Board remanded the issues of entitlement to service connection for a right lower extremity disability and entitlement to an evaluation in excess of 10 percent for lumbar degenerative changes since January 31, 2013. 

In April 2017, VA granted entitlement to service connection for right lower extremity numbness and tingling. As such, the appeal of that issue is resolved and no longer for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). To date, the Veteran has not perfected an appeal to either the rating or effective date assigned and those issues are not before the Board. 

In April 2017, VA granted a 20 percent rating for lumbar degenerative changes from September 26, 2016, resulting in staged ratings.

This is a paperless appeal and the Veterans Benefits Management System (VBMS) and Virtual VA folders have been reviewed. 


FINDINGS OF FACT

1. For the period from January 31, 2013 to February 2, 2015, the Veteran's lumbar degenerative changes were not manifested by forward flexion of the thoracolumbar spine less than 61 degrees; or, the combined range of motion of the thoracolumbar spine less than 121 degrees; or by muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.

2. The Veteran reported increased low back symptoms at the February 2, 2015 videoconference hearing and the September 26, 2016 VA examination showed forward flexion limited to 40 degrees; resolving reasonable doubt in his favor, the disability picture more nearly approximated forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees as of February 2, 2015.

3. For the period since September 26, 2016, the Veteran's lumbar degenerative changes have not been manifested by either forward thoracolumbar flexion to 30 degrees or less; or by favorable ankylosis of the thoracolumbar spine. 


CONCLUSIONS OF LAW

1. For the period from January 31, 2013 to February 1, 2015, the criteria for a rating greater than 10 percent for lumbar degenerative changes were not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2017).

2. For the period from February 2, 2015 to September 26, 2016, the criteria for a 20 percent rating, and no more, for lumbar degenerative changes were met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5242 (2017).

3. For the period since September 26, 2016, the criteria for a rating greater than 20 percent for lumbar degenerative changes are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5242. 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017).

Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. 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). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). 

VA regulations, set forth at 38 C.F.R. §§ 4.40, 4.45, 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. The United States Court of Appeals for Veterans Claims (Court) has held that a higher rating can be based on "greater limitation of motion due to pain on use." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Any such functional loss must be "supported by adequate pathology and evidenced by the visible behavior of the claimant." See 38 C.F.R. § 4.40.

When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply, 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.

The Veteran's lumbar disorder is evaluated as degenerative arthritis of the spine, which is rated under the General Rating Formula for Diseases and Injuries of the Spine, which provides a 10 percent rating when there is 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 of the height. 38 C.F.R. § 4.71a, Diagnostic Code 5242.

A 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is 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 when forward flexion of the thoracolumbar spine is 30 degrees or less; or, there is favorable ankylosis of the entire thoracolumbar spine. Id.

These ratings apply 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 General Rating Formula for Diseases and Injuries of the Spine.

Pertinent to the period since January 31, 2013, the record contains VA records, the Veteran's testimony, and a VA examination. VA records show continued complaints and treatment related to chronic low back pain, which is generally shown to be stable on diclofenac. 

At his February 2, 2015 videoconference hearing, the Veteran testified that his back hurts while doing household tasks and he had to stop and take breaks. He stated that that he could not bend over at the waist and that he had to stoop down to pick things up. He further testified that he thought his disability has worsened since he was last seen for a VA examination in 2013. 

The Veteran underwent a VA examination on September 26, 2016. He reported chronic low back pain that worsened with certain activity or cold weather. He described flare-ups as increased pain with difficulty moving his back. He also noted stiffness and limited range of motion. Objectively range of motion was forward flexion 0 to 40 degrees; and extension, bilateral lateral flexion and bilateral lateral rotation was from 0 to 10 degrees in each plane of movement.  There was pain in all planes. The Veteran was able to perform repetitive use testing with at least three repetitions but there was no additional loss of function or range of motion. The examiner stated that the examination was being conducted during a flare-up and that pain and incoordination caused functional loss. Range of motion, however, was not reduced. There was no ankylosis of the spine, and there was no evidence of guarding or thoracolumbar muscle spasm. The examiner stated that the thoracolumbar spine condition impacted the Veteran's ability to work in that he experienced limited range of motion and right lower extremity radiculopathy with increased pain with prolonged sitting, walking, standing, lifting, pushing and pulling, and movement of the spine. 

The RO increased the Veteran's rating to 20 percent based on the September 26, 2016 VA examination showing forward flexion of the thoracolumbar spine limited to 40 degrees. The Veteran, however, reported increased symptoms at the February 2, 2015 videoconference hearing. Resolving reasonable doubt in his favor, the Board finds that the increase to 20 percent, and no more, is warranted effective the date of the hearing. See 38 C.F.R. §§ 4.3, 4.7. 

Since October 31, 2013 and prior to February 2, 2015, the lumbar spine degenerative changes were not manifested by forward flexion of the thoracolumbar spine less than 61 degrees; or, combined range of thoracolumbar motion less than 121 degrees; or, by muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Thus, a rating greater than 10 percent was not warranted during this time period.

For the period from February 2, 2015 to September 26, 2016, as well as since September 26, 2016, the criteria for a rating greater than 20 percent are not met or more nearly approximated. That is, the disability picture has never been manifested by forward thoracolumbar flexion to 30 degrees or less; or by favorable ankylosis of the entire thoracolumbar spine. The Board acknowledges the examination report indicates that the Veteran has intervertebral disc syndrome. There were, however, no incapacitating episodes as defined by regulation and a higher rating is not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5243. 

In making the above determinations, the Board has considered the Veteran's complaints of functional impairment, but does not find adequate pathology sufficient to warrant higher ratings based on pain on motion or other factors. It bears repeating that the general rating formula evaluates diseases and injuries of the spine based upon limitation of motion, and that those criteria are controlling regardless whether there are 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. 38 C.F.R. § 4.71a.

While the recent examination suggests the Veteran's service-connected back disorder would impact employability, there is no indication it is of such severity so as to preclude employment. In this regard, evidence of record suggests that the Veteran was unemployed as he was attending school. The Board finds no basis for inferring a claim of entitlement to a total disability rating based on individual unemployability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 

ORDER

For the period from January 31, 2013 to February 1, 2015, entitlement to an evaluation in excess of 10 percent for lumbar degenerative changes is denied.

For the period from February 2, 2015 to September 26, 2016, a 20 percent evaluation, and no more, for lumbar degenerative changes is granted, subject to the laws and regulations governing the award of monetary benefits.

For the period since September 26, 2016, an evaluation in excess of 20 percent for lumbar degenerative changes is denied. 



____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs