Citation Nr: 1805204 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 10-33 220 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for degenerative changes of the lumbar spine, prior to November 23, 2015, and in excess of 20 percent thereafter. REPRESENTATION Veteran represented by: Veterans of the Vietnam War, Inc. ATTORNEY FOR THE BOARD Jeremy J. Olsen, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from May 1978 to September 1985 and from November 2001 to October 2007. He had active duty for training (ACDUTRA) service from July 1986 to November 1986 and October 1990 to January 1991. He also had additional service in the Army Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In September 2014, the Board remanded the Veteran's claim for further development, to include an examination in light of allegations of worsening. An examination was performed in November 2015. Then, in March 2017, the Board again remanded the claim, to provide the Veteran with a VA examination which complied with the requirements set forth by the United States Court of Appeals for Veterans Claims (Court) in Correia v. McDonald, 28 Vet. App 158 (2016). That examination occurred in October 2017. The Board finds that its remand directives were accomplished and, as such, no further remand is required. Stegall v. West, 11 Vet. App. 268 (1998). Finally, the Board observes that the issue of service connection for a left leg disorder was previously before it. However, service connection for the disorder was granted in a November 2017 rating decision. As such, this resolves the Veteran's appeal regarding this service connection claim and the matter is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). FINDINGS OF FACT 1. Prior to November 23, 2015, the Veteran's lumbar spine disability was manifested by forward flexion greater than 60 degrees and a combined range of motion greater than 120 degrees, even in contemplation of functional loss due to symptoms such as pain, or as a result of repetitive motion and/or flare-ups, without muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, incapacitating episodes due to intervertebral disc syndrome (IVDS), or associated objective neurological abnormalities other than bladder and bowel symptoms for which he was separately compensated. 2. Since November 23, 2015, the Veteran's lumbar spine disability was manifested by forward flexion greater than 60 degrees and a combined range of motion greater than 120 degrees, even in contemplation of functional loss due to symptoms such as pain, or as a result of repetitive motion and/or flare-ups, without muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, and without incapacitating episodes due to IVDS or associated objective neurological abnormalities other than lower extremity radiculopathy for which he was separately service connected. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for degenerative changes of the lumbar spine, prior to November 23, 2015, and a rating in excess of 20 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107 (2012), 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Neither the Veteran in this case nor his representative has referred to any deficiencies in either VA's duty to notify or to assist; therefore, the Board may proceed to the merits of the claims. 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 [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The basis of disability evaluation 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. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. The Court has held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry 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; see also Correia, supra. 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. 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). As of January 29, 2009, the date of service connection, and at all times relevant to the claim, the Veteran's degenerative changes of the lumbar spine (hereinafter, "lumbar spine disability") has been rated pursuant to DC 5242 (degenerative arthritis of the spine), which is rated under the General Rating Formula for Disease and Injuries of the Spine (General Rating Formula). 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. The General Rating Formula provides a 10 percent disability rating 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 of the height. A 20 percent disability rating 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 disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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 normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. IVDS (preoperatively or postoperatively) may be evaluated under either the General Rating Formula or under the IVDS Rating Formula, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The IVDS Rating Formula provides that a 10 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months and 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. Note (1) provides that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. By way of history, the Veteran was granted service connection for a lumbar spine disability in a November 2009 rating decision, and assigned a noncompensable rating. In a March 2010 rating decision, his disability rating was increased to 10 percent, as of January 29, 2009, the date of service connection. Then, in a May 2016 rating decision, the Veteran's disability rating was increased to 20 percent, effective November 23, 2015. The Veteran asserts that, at all point of the appeal, his rating should be higher. Turning to the evidence of record, the Veteran underwent a VA examination in January 2010. At that time, the diagnosis of lumbar degenerative disc disease was confirmed. The Veteran reported spasms due to the disability, but denied stiffness, fatigue, decreased motion, paresthesia and numbness. He indicated that he had bowel problems which manifested as slight leakage occurring less than 1/3 of the day; he did not require pads. The Veteran reported bladder problems without incontinence. He described moderate pain in his left leg due to the back disability, which was exacerbated by physical activity and relieved by rest. During flare-ups, the Veteran experienced pain. The Veteran denied incapacitation and indicated an overall functional impairment of painful walking. On examination, there was no evidence of radiating pain on movement. Muscle spasm was absent, as was tenderness and guarding of motion. No weakness was revealed by examination. Muscle tone was normal. There was no ankylosis of the thoracolumbar spine noted. Range of motion testing was within normal limits, both initially and on repetition. There was no additional degree of limitation. Flexion was noted to be at 90 degrees, with pain noted at 90. Extension was measured at 30 degrees, with pain at 30. Right lateral flexion, left lateral flexion, right rotation and left rotation were all measured at 30 degrees. The examiner noted that the joint function of the spine was additionally limited by pain following repetitive use; however, it was not additionally limited by fatigue, weakness, lack of endurance or incoordination. As noted above, the Veteran underwent a VA examination in November 2015. At that time, degenerative arthritis of the lumbar spine was noted, with an onset date of 1986. The Veteran reported experiencing problems with bending over. Flare-ups were noted, in that he experienced back pain when first waking up in the morning; the pain sometimes lasted the entire day. On examination, forward flexion was measured at 60 degrees, and extension was 30 degrees. Right lateral flexion, left lateral flexion, right rotation and left rotation were all measured at 30 degrees. The examiner found that the reduced range of motion contributed to a functional loss. Pain on flexion and extension was noted. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the back. The Veteran was able to perform repetitive use testing without additional loss of function. The examiner determined that the examination was being conducted during a flare-up, and pain significantly limited functional ability, resulting in forward flexion of 60 degrees and extension of 30. There was no localized tenderness, guarding or muscle spasm of the spine present. Atrophy, radiculopathy, ankylosis and IVDS were all absent. The Veteran used no assistive devices and had no scars related to the disability. In October 2017, the Veteran underwent an additional VA examination. At that time, degenerative arthritis of the spine and IVDS were diagnosed. The Veteran reported pain which radiated down his left leg. He described flare-ups and difficulties bending over or tying his shoes. Range of motion testing revealed forward flexion at 75 degrees and extension at 20 degrees. Right lateral flexion, left lateral flexion, right rotation and left rotation were all measured at 30 degrees. The range of motion was found to contribute to a functional loss, in that the Veteran was unable to bend over fully. The Veteran was able to perform repetitive use testing with at least three repetitions. Pain was found to significantly limit functional ability with repeated use over a period of time, although the examiner was unable to accurately describe such limitations in degrees. There was no guarding or muscle spasm of the back. There was interference with sitting in that the Veteran had a reduced range of motion and could not sit for long periods of time. Radiculopathy was noted in the lower extremities, and found to be mild in nature in the right leg and moderate in the left. There was no ankylosis or neurological abnormalities such as bowel or bladder problems. IVDS was noted, without episodes of acute signs and symptoms related to such which required bed rest prescribed by a physician. Treatment of the condition by a physician in the past 12 months was also absent. The Veteran did not use assistive devices. There was no evidence of pain on passive range of motion testing, and no evidence of pain when the joint was used in non-weight bearing. Prior to November 23, 2015 The Board finds that an initial rating in excess of 10 percent for the Veteran's lumbar spine disability, prior to November 23, 2015, is not warranted. In this regard, a 20 percent rating is assigned where there is 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. The evidence in this case shows that, prior to November 23, 2015, the Veteran's lumbar spine disability was manifested by forward flexion measured at 90 degrees and a combined range of motion greater than 120 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, and without muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour. Even in consideration of pain, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent under DC 5242. In this regard, the Board has considered whether repetitive motion and/or flare-ups resulted in additional functional loss due to symptoms such as pain, swelling, weakness, fatigue, or incoordination. However, as demonstrated during the January 2010 VA examination, the Veteran had pain on motion, but there is no indication that such resulted in additional functional loss, to include a greater loss of flexion. Therefore, the Board finds that such factors do not result in functional loss more nearly approximating flexion limited to 60 degrees in the lumbar spine, a total range of motion of 120 degrees or less, or muscle spasms or guarding severe enough to result in an abnormal gait or spinal contour. See DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell, supra. As such, the medical evidence indicates that a rating in excess of 10 percent is not warranted for the lumbar spine disability prior to November 23, 2015, when considering the General Rating Formula. Additionally, the Board finds that the rating criteria governing IVDS are inapplicable prior to November 23, 2015, as the entirety of the evidence, to specifically include the January 2010 examination report, was negative for a diagnosis of IVDS or prescribed bed rest by a physician. After a thorough review of the evidence, the Board finds that the preponderance of the evidence is against a finding that the Veteran's service-connected lumbar spine disability warrants a rating in excess of 10 percent prior to November 23, 2015. As the preponderance of the evidence is against the claim, there is no benefit of the doubt to resolve and it must be denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 4.85, Diagnostic Code 5242 (2017); see also Gilbert, supra. Since November 23, 2015 The Board finds that a disability rating in excess of 20 percent for the Veteran's lumbar spine disability as of November 23, 2015, is likewise not warranted. In this regard, a 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Indeed, the objective medical evidence of record shows that the Veteran's lumbar flexion was limited, at most, to 60 degrees, and no examiner found there to be any ankylosis of the spine present. While the record does contain statements regarding limitation of bending and sitting, the Board notes that repetitive use did not result in additional limitation of motion during the November 2015 VA examination. While the October 2017 VA examiner concluded that there was additional loss, he did was unable to describe the resulting loss in degrees. Regardless, in light of the Veteran's measured flexion readings at that time, the Board finds that such factors do not result in functional loss more nearly approximating flexion limited to 30 degrees or less or favorable ankylosis of the entire spine, which would warrant a higher disability rating. See DeLuca, supra; Mitchell, supra. Therefore, the Veteran is not entitled to a rating in excess of 20 percent under DC 5242 for the period subsequent to November 23, 2015. Although the October 2017VA examiner found that the Veteran had IVDS, there is no medical evidence on file showing incapacitating episodes of disc disease requiring bed rest prescribed by a physician or treatment by a physician having a total duration of at least two weeks during the past 12 months. Accordingly, a higher rating under the IVDS Formula is not warranted. Furthermore, the Board has considered all potentially applicable diagnostic codes. See Schafrath, supra. Regardless, the evidence does not show incapacitating episodes and the diagnostic code for arthritis does not permit a rating in excess of 20 percent. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5243. In assessing the severity of the Veteran's lumbar spine disability, the Board has considered his assertions regarding his symptoms, which he is competent to provide. See e.g. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). 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 ratings that have been assigned. 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 Veteran's lumbar spine disability. 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 medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected disability. Finally, regarding separate evaluations, the Veteran reported bowel and bladder dysfunction in the January 2010 VA examination; he was subsequently awarded a separate evaluation for same. In addition, service connection has been granted for right and left leg radiculopathy; the Veteran has not appealed the effective dates assigned to such. Thus, separate evaluations are not for consideration herein. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran's service-connected lumbar spine disability warrants a rating in excess of 20 percent after November 23, 2015. As the preponderance of the evidence is against the claim, there is no benefit of the doubt to resolve and it must be denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 4.85, Diagnostic Code 5242 (2017); see also Gilbert, supra. ORDER An initial disability rating in excess of 10 percent for degenerative changes of the lumbar spine, prior to November 23, 2015, is denied. A disability rating in excess of 20 percent for degenerative changes of the lumbar spine, subsequent to November 23, 2015, is denied. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs