Citation Nr: 1805535	
Decision Date: 01/29/18    Archive Date: 02/07/18

DOCKET NO.  14-15 418A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUE

Entitlement to an initial disability rating in excess of 20 percent for degenerative disk disease of the lumbar spine.


REPRESENTATION

Veteran represented by:	Christopher L. Loiacono, Agent


ATTORNEY FOR THE BOARD

J. Costello, Associate Counsel



INTRODUCTION

The Veteran served on active duty from November 1983 to September 1992.   

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Indianapolis, Indiana, Regional Office (RO), of the Department of Veterans Affairs (VA).

In his May 2014 substantive appeal, the Veteran selected a Travel Board hearing.  In November 2014, the Veteran withdrew his Travel Board hearing request.

The Board notes that in June 2017, the Veteran's claim for entitlement to an initial evaluation in excess of 10 percent for service-connected left lower extremity radiculopathy was certified to the Board, yet the Veteran requested a hearing for this claim.  Therefore, the Board will not adjudicate the issue of entitlement to an initial evaluation in excess of 10 percent for service-connected left lower extremity radiculopathy as a hearing has not been held for this claim.


FINDINGS OF FACT

1.  The Veteran's degenerative disk disease of the lumbar spine has been manifested by flexion of the lumbar spine to 50 degrees at worse, considering pain and other considerations, but does not result in ankylosis.

2.  On May 3, 2017, the Veteran was diagnosed with right lower extremity radiculopathy that is at worst, mild in severity.


CONCLUSIONS OF LAW

1.  The criteria for an initial rating in excess of 20 percent for degenerative disk disease of the lumbar spine have not been met. . 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5299-5242 (2017).

2.  The criteria for a separate rating of 10 percent, but not higher, for right lower extremity radiculopathy related to the Veteran's service-connected degenerative disk disease of the lumbar spine from May 3, 2017 is warranted.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-14, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Codes 5299-5242, 38 C.F.R. § 4.124 (a), Diagnostic Code 8520 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Ratings

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  The Veteran's entire history is reviewed when making disability evaluations.  See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

Before proceeding with its analysis of the Veteran's claim, the Board finds that some discussion of Fenderson v. West, 12 Vet. App 119 (1999) is warranted.  In that case, the United States Court of Appeals for Veterans Claims (Court) emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case (such as this one) in which a veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected.  VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating."  See also Hart v. Mansfield, 21 Vet. App. 505 (2007).  In this case, there has not been a material change in the disability level and a uniform rating is warranted.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed.  See 38 C.F.R. § 4.14.  A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity."  Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C. § 1155).  This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14.  However, if a Veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes.  See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993).

When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing.  See 38 C.F.R. §§ 4.40, 4.45.  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.  Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.  The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record.  Burton v. Shinseki, 25 Vet. App. 1 (2011).
   
The Board notes that the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention 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.  The Court previously indicated that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion.  Johnson v. Brown, 9 Vet. App. 7 (1996).  However, the Court recently suggested that the plain language of 38 C.F.R. § 4.59 indicates that it is potentially applicable to the evaluation of musculoskeletal disabilities involving joint or periarticular pathology that are painful, whether or not evaluated under a diagnostic code predicated on range of motion measurements.  See Correia v. McDonald, 28 Vet. App. 158 (2016); see also Sharp v. Shulkin, 29 Vet. App. 26 (2017) (holding that the examiner should "estimate the functional loss that would occur during flares").

The Board notes that the VA examination was adequate per Correia, supra.  In this case, the Court required a pain assessment in an examination in order for the examination to be adequate:  specifically, the examiner must test for pain in both active and passive motion, as well as in weight-bearing and nonweight bearing.  These actions were accomplished in the May 2017 examination.  Further, although the VA examination did not explicitly address Sharp, supra, the examiner found no reason to discount the Veteran's report that his flare-ups were manifested by sciatica and there was no functional loss or functional impairment of the thoracolumbar spine (regardless of repetitive use).

The Veteran was service-connected for degenerative disk disease of the lumbar spine in a November 2011 rating decision, at which time the RO assigned a 20 percent disability rating pursuant 38 C.F.R. § 4.71a, Diagnostic Codes 5299 - 5242, effective February 27, 2009.  Under the General Rating Formula for Diseases and Injuries of the Spine, in pertinent part, a 20 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; or forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or the combined range of motion of the cervical spine not greater than 170 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.  A 40 percent rating is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less; if there is favorable ankylosis of the entire thoracolumbar spine; or, if there is unfavorable ankylosis of the entire cervical spine.  A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine.

Following the criteria set forth in the General Rating Formula for Diseases and Injuries of the Spine, Note (1) provides: evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.

Note (2) provides that, 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 normal combined range of motion 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) provides that 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) requires that each range of motion measurement be rounded to the nearest five degrees.

Note (5) provides that 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) provides that disabilities of the thoracolumbar and cervical spine segments must be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.

For evaluation of intervertebral disc syndrome under Diagnostic Code 5243, with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent rating is assignable.  With incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent rating is assignable.  Id.

For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is 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.  If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment.  Id.  However, in this case, the record does not reflect any incapacitating episodes due to service-connected back symptomatology as defined by regulation that would result in a higher disability evaluation.

The Veteran contends that his service-connected degenerative disk disease of the lumbar spine is more disabling than reflected by initial 20 percent rating assigned.  

In September 2010, the Veteran underwent a VA examination for a spine condition.  The examiner reviewed the Veteran's claims file.  The Veteran stated that he injured his back when he lifted a trailer.  He had low lumbar pain afterwards.  On examination, his gait was normal and the Veteran was able to walk on heels and toes without difficulty.  Range-of-motion testing found the Veteran to have forward flexion to 70 degrees.  Extension, lateral bending, and rotation measured at 10 degrees, with pain beginning at 10 degrees.  Active range of motion for the lumbar spine measured 0 to 130 degrees without painful limitation.  The ranges of motion during passive, active and three repetitive motions were all the same.  He did not have pain over the sciatic notch bilaterally.  No atrophy was found and muscle strength was normal.  There were no additional functional impairments due to pain, weakness, fatigability, incoordination, or flare-ups.  There were no incapacitating episodes of pain nor any neurological findings or effects on daily activities.  X-ray showed moderate osteoarthritis of the lumbar spine.  The Veteran was diagnosed with degenerative disk disease of the lumbar spine.  

In October 2010, the Veteran underwent another VA examination for a spine condition.  The examiner reviewed the Veteran's claims file.  On examination, the Veteran walked without a limp.  Range-of-motion testing found the Veteran to have forward flexion to 80 degrees, with pain starting at 80 degrees.  Extension measured from 0 to 10 degrees, lateral bending measured 0 to 20 degrees, and rotation measured 0 to 35 degrees, with stiffness beginning at 35 degrees.  Active range of motion for the lumbar spine measured 0 to 130 degrees without painful limitation.  No atrophy was found and muscle strength was normal.  X-rays showed mild degenerative disk disease of the lumbar spine.  The Veteran was diagnosed with degenerative disk disease of the lumbar spine.  

In a February 2015 letter, the Veteran stated that his back condition caused constant body shakes since October 2014.  He was prescribed a cane as he fell multiple times.  

In September 2015, a disability benefits questionnaire (DBQ) for back conditions was completed.  The VA examiner reviewed the Veteran's claims file.  The Veteran was diagnosed with degenerative disk disease of the lumbar spine.  He reported flare-ups that caused painful motion.  Range-of-motion testing found the Veteran to have forward flexion to 50 degrees.  Extension measured from 0 to 10 degrees, lateral bending measured 0 to 20 degrees, and rotation measured 0 to 30 degrees.  The Veteran had painful motion when forward flexion and extension were measured, but it did not result in or cause functional loss.  There was no evidence of pain with weight bearing.  There was no objective evidence of localized tenderness or pain on palpation of the joints of the lumbar spine.  There was no functional loss with repetitive testing.  Muscle strength was normal.  Sensory and reflex examinations were normal.  He had mild pain in his left lower extremity.  No ankylosis was found.  The Veteran regularly used a cane.  The examiner found that there was no additional increased pain, weakness, fatigability, or incoordination that could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time.  

VA treatment notes from December 2015 to December 2016 indicated that the Veteran experienced chronic lower back pain.

In May 2017, the Veteran underwent another DBQ examination for back conditions.  The VA examiner reviewed the Veteran's claims file.  The Veteran was diagnosed with intervertebral disk syndrome of the lumbar spine.  The Veteran reported injuring his back in 1986 and that his pain persisted since his injury.  He reported flare-ups that caused bilateral sciatica but denied any functional loss or functional impairment of the thoracolumbar spine regardless of repetitive use.  Range-of-motion testing found the Veteran to have forward flexion to 60 degrees.  Extension measured from 0 to 10 degrees, lateral flexion measured 0 to 20 degrees, and rotation measured 0 to 30 degrees.  The Veteran had painful motion when forward flexion and extension were measured, but it did not result in or cause functional loss.  The Veteran did not have an abnormal gait or spinal contour.  There was no functional loss with repetitive testing.  The examination was noted to not be conducted during a flare-up and the examiner found that the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss during flare-ups.  Muscle strength was normal.  Sensory and reflex examinations were normal.  The examiner indicated that the Veteran had radicular pain or signs or symptoms due to radiculopathy and reported that the Veteran had associated mild intermittent pain in both the right and left lower extremity without any other signs or symptoms of radiculopathy.  No ankylosis or arthritis was found.  The nerve involvement was reported to be both L4/L5/S1/S2/S3 (sciatic nerve).  The Veteran did not have an episode of symptoms due to intervertebral disk syndrome that required bed rest in the past twelve months.  The Veteran did not use assistive devices.  There was no evidence of pain with weight bearing, non-weight bearing, or passive range of motion.  

Upon review of the evidence, the Board finds that an initial rating in excess of 20 percent for the Veteran's service-connected degenerative disk disease of the lumbar spine is not warranted.  As noted, in order to get the next higher rating of 40 percent, the Veteran must have forward flexion of the thoracolumbar spine limited to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine.  The Board notes that the Veteran's degenerative disk disease of the lumbar spine has been manifested by disability equating to no worse than a limitation on the range of motion consisting of flexion to no worse than 50 degrees, even when pain on motion is taken into consideration as per DeLuca, supra.  Ratings of 50 percent and 100 percent ratings are not warranted because the Veteran does not experience ankylosis of his spine.  In reaching this conclusion, the Board notes in particular that each VA examiner has found the Veteran not to have ankylosis, and no VA treatment providers have made any such findings in his treatment records.  Therefore, the Board finds that an initial rating in excess of 20 percent for service-connected degenerative disk disease of the lumbar spine is not warranted.  See 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Codes 5299-5242.

In reaching this decision, the Board acknowledges that the VA examiners have observed the Veteran to have pain throughout the range of motion on repetition and to report flare-ups that caused increased pain and limitation of motion.  38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71, 4.71a; DeLuca, 8 Vet. App. at 204-07.  As discussed above, however, the functional impact of the Veteran's low back disability has been considered by his VA examiners, and when reporting the loss experienced by the Veteran there has been no indication that his ability to function is restricted beyond the limits of motion specifically described in the September 2010, October 2010, September 2015, and May 2017 VA examination reports.  The evidence reflects that the VA examiners considered the Veteran's pain on motion, including repetitive motion, when reporting on the range of motion of his lumbar spine.  As noted above, not one of the four VA examiners found ankylosis or found the Veteran's forward flexion to be less than 30 degrees, even when considering pain throughout the range of motion on repetition.  As such, there is simply no indication that the Veteran's disability, even with consideration of flare-ups due to pain, would approximate a 40 percent rating for forward flexion of the thoracolumbar spine limited to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine, or a 50 percent rating for unfavorable ankylosis of thoracolumbar spine, or a 100 percent rating for unfavorable ankylosis of the entire spine, at any point during the appeal period.  The Board acknowledges the Veteran's statements to the effect that his low back disorder causes him bilateral sciatica and pain, especially when the disability flares up.  Here, however, the Board finds that the current 20 percent rating takes into consideration any interference with the Veteran's overall function of his lumbar spine due to his service-connected degenerative disk disease of the lumbar spine, including both pain on motion and flare-ups of the disability.

The Board further acknowledges that the Veteran experienced radiating pain and numbness into his lower extremities.  With regard to radiculopathy, the Board notes that the Veteran's VA examination showed evidence of mild bilateral lower extremity radiculopathy from May 3, 2017 onward.  Paralysis of the sciatic nerve is rated according to Diagnostic Code 8520.  A 10 percent rating is warranted for mild incomplete paralysis.  A 20 percent rating is assignable for moderate incomplete paralysis of the sciatic nerve.  A 40 percent rating is warranted for moderately severe incomplete paralysis.  A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy.  A maximum rating of 80 percent is warranted for complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or (very rarely) lost.  38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017).  The Veteran was previously service connected for mild left lower extremity radiculopathy associated with the degenerative disk disease of the lumbar spine from February 27, 2009.  Therefore, a separate 10 percent rating for right lower extremity radiculopathy is warranted.  In so finding, the Board has considered the next highest rating of moderate, but notes that there is no medical evidence of record consistent with such an assessment.  Finally, the Board observes that there are no other neurological abnormalities of record to warrant assignment of any additional separate ratings.  

The Board is cognizant, as discussed above, that the Veteran complained of painful motion of his lumbar spine.  In VA Fast Letter 06-25, VA has determined that repetitive testing of a joint should yield sufficient information on any functional loss due to an orthopedic disability.  Most recently, testing of the Veteran's lumbar spine in May 2017 revealed flexion of the lumbar spine to 60 degrees.  At worst, the Veteran has been found to have forward flexion of the lumbar spine to 50 degrees.  In this case, the Board has taken into consideration the Veteran's complaints of pain but finds, in light of the fact that he is being rated for limitation of motion of the lumbar spine under Diagnostic Codes 5299-5242, that any such pain and its effect on his range of motion is contemplated in the rating currently assigned.  Therefore, the Board does not find that a disability rating in excess of the 20 percent initially assigned for the Veteran's lumbar spine disability based on any additional functional loss under 38 C.F.R. §§ 4.40, 4.45, or 4.59 is warranted under the rating criteria.

In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the Veteran's claim for a higher initial rating, that doctrine is not helpful to the Veteran.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Entitlement to initial rating in excess of 20 percent for degenerative disk disease of the lumbar spine is denied.

Entitlement to a separate rating of 10 percent, but not higher, for right lower extremity radiculopathy associated with the Veteran's service-connected degenerative disk disease of the lumbar spine from May 3, 2017 is granted, subject to the laws and regulations governing the payment of monetary benefits.  




S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs