Citation Nr: 18140083 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 12-30 752A DATE: October 2, 2018 ORDER Entitlement to a 40 percent rating, but no higher, for lumbar strain with degenerative changes at multiple levels (excluding periods during which a 100 percent rating was in effect) is granted. FINDING OF FACT Throughout the period on appeal, the Veteran’s lumbar spine disability has been manifested by decreased range of motion with pain and flare-ups, but there has been no evidence of unfavorable ankylosis of the thoracolumbar spine. At no time has the service-connected lumbar spine disability been manifested by incapacitating episodes having a total duration of at least 6 weeks in any 12-month period. CONCLUSION OF LAW The criteria for a 40 percent rating, but no higher, for lumbar strain with degenerative changes at multiple levels have been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1979 to July 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Board observes that in multiple substantive appeals submitted by the Veteran, he requested a Board videoconference hearing. In conformance with his request, a hearing was scheduled in September 2017. In correspondence received in August 2017, however, the Veteran’s attorney requested that the scheduled hearing be cancelled. He indicated that the Veteran did not wish to reschedule it. In light of the foregoing, the Board determines that the request for a hearing has been withdrawn. Thus, the Board will proceed with consideration of the appeal based on the evidence of record. 38 C.F.R. § 20.704(e) (2017). This matter was before the Board in January 2018 at which time it was remanded for additional procedural development. A review of the record shows that the RO has complied with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). The Board observes that the issues of entitlement to service connection for erectile dysfunction and a bowel dysfunction were also remanded by the Board in the January 2018 decision. However, service connection for the above-mentioned claims was granted in a June 2018 rating decision. The grant of service connection constitutes a full award of the benefits sought on appeal with respect to these claims. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The record currently available to the Board contains no indication that the Veteran has initiated an appeal with the initial ratings or effective dates assigned. Grantham, 114 F. 3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of “downstream” elements such as the disability rating or effective date assigned). Thus, the issues are not in appellate status at this juncture. A review of the record shows that the Veteran perfected appeals for the issues of entitlement to increased ratings for right and left lower extremity lumbar radiculopathy. However, the Board notes that these issues have not yet been certified to the Board. Without certification, it is unclear as to whether the RO may be pursuing any additional development or readjudication. Therefore, the issues will be the subject of a future Board decision. 1. Entitlement to a rating in excess of 20 percent prior to June 1, 2008 and in excess of 40 percent thereafter for lumbar strain with degenerative changes at multiple levels (excluding periods during which a 100 percent rating was in effect) Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. 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. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10 (2017). Where a claimant appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). The Veteran’s service-connected lumbar spine disability has been evaluated under Diagnostic Code 5242 for degenerative arthritis. VA’s Rating Schedule evaluates disabilities of the spine pursuant to a General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242 (2017). That formula provides that 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 following ratings are assigned: A 20 percent 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 rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Several notes to the General Rating Formula for Diseases and Injuries of the Spine provide additional guidance. Under Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Under Note (2): 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. Under 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. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242 (2017). In addition to the General Rating Formula for Diseases and Injuries of the Spine, intervertebral disc syndrome may be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that when intervertebral disc syndrome is productive of incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent rating is assigned. When intervertebral disc syndrome is productive of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months, a 40 percent rating is assigned. When incapacitating episodes have a total duration of at least six weeks during the past 12 months, a maximum 60 percent rating is assigned. Note (1) following 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017) provides that 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. 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, 4.21. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Factual Background The Veteran was provided a VA examination in July 2007. At that time, he complained of pain radiating into the lower extremities. He reported flare-ups, which occurred four to five times per week with episodes of incapacitation lasting anywhere from one to three days. During flare-ups, he indicated that he had to ambulate by wheelchair; otherwise, he uses a cane for short distances. On physical examination, there was tenderness over L5 through S1 and associated muscles. On range of motion testing, the appellant had forward flexion from 0 to 45 degrees with pain; hyperextension from 0 to 20 degrees with pain; bilateral flexion from 0 to 20 degrees with pain; and bilateral rotation from 0 to 20 degrees with pain. There was evidence of pain, weakness, fatigability, and lack of endurance and coordination with repetitive testing. Additional loss of function with repetitive motion was estimated at 10 degrees, secondary to pain and fatigability. On neurological evaluation, the appellant had deep tendon reflexes of 1+ in the bilateral lower extremities. Sensory examination revealed diminished sensation at L5-S1. The examiner assessed multilevel degenerative changes in the lumber spine and radiculopathy of the bilateral lower extremities. An additional VA examination was provided in July 2008. The Veteran reported increased pain and numbness in the lower back and bilateral lower extremities through the feet. He indicated that he had chronic low throbbing back pain with edema and swelling in his back and lower extremities. It was noted that the appellant used a rollator wheelchair. The Veteran reported daily flare-ups, which lasted approximately 3 to 5 hours. He reported that during flare-ups, he is unable to function, other than to handle the pain. Range of motion testing was not conducted. It was reported that the appellant stated that he was unable to stand and do any flexion or extension secondary to his instability and the pain caused recent neck surgery. The Veteran underwent a VA examination in February 2009. At that time, he reported that his functional abilities had declined to the point that he gets around in a motorized wheelchair as he cannot walk more than a few steps without having severe back and leg pain. He also reported daily flare-ups of pain. With regards to additional limitation of motion or functional impairment during the flare-ups, the Veteran reported that he cannot do much of anything. He cannot move his back without pain and his legs cramp when he tries to stand or walk. Associated features and symptoms of the appellant’s back disability included leg numbness, weakness, bladder and bowel complaints, and erectile dysfunction. It was noted that the appellant was experiencing a severe flare-up at the time of the examination, but insisted on trying range of motion testing. On standing, the appellant was in a stooped position. He could stand up straight with great effort and pain. On range of motion testing, the appellant had forward flexion from 0 to 5 degrees, he lacked 85 degrees due to pain; extension from 0 to 5 degrees, he lacked 25 degrees due to pain; left and right lateral rotation from 0 to 5 degrees, he lacked 25 degrees due to pain; and left and right lateral rotation from 0 to 5 degrees, he lacked 25 degrees due to pain. It was noted that all motions were with the Veteran holding his cane with his fiancé on one side that the examiner on the other. Following evaluation, the examiner diagnosed lumbar strain with degenerative changes at multiple levels and left and right let lumbar radiculopathy. In the report of an October 2011 VA examination, it was noted that the appellant had a diagnosis of degenerative disk disease of the lumbar spine. Flare-ups were denied. On range of motion testing, the appellant had forward flexion, extension, left and right flexion, and left and right lateral rotation to 5 degrees with objective evidence of painful motion at 5 degrees. The Veteran was unable to perform repetitive-use testing due to pain, guarding, and fatigue. On muscle strength testing, the appellant had normal strength, reflex examination showed hypoactivity, and sensory examination showed absent findings. Straight leg raising testing was unable to be performed. There was no evidence of radiculopathy. Other neurologic abnormalities included bowel and bladder incontinence. While intervertebral disc syndrome of the lumbar spine was noted, the Veteran had not had any incapacitating episodes over the past 12 months. A final VA examination was provided in February 2012. Disabilities of the lumbar spine included degenerative disc disease and lumbar intervertebral disc syndrome with myelopathy. At that time, he reported daily back pain and muscle spasms. He denied flare-ups. On range of motion testing, the appellant had forward flexion to 80 degrees with objective evidence of pain at 80 degrees. The Veteran was unable to perform repetitive-use testing. With regards to neurologic abnormalities, radiculopathy of the bilateral lower extremities and bladder dysfunction were assessed. Intervertebral disc syndrome of the lumbar spine was noted, but there was no evidence of incapacitating episodes. Post-service medical records note complaints of and treatment for back pain. Analysis Applying the criteria set forth above to the facts in this case, the Board finds that a 40 percent rating is warranted throughout the period on appeal. However, the preponderance of the evidence is against assignment of a rating in excess of 40 percent for the Veteran’s lumbar spine disability. In this regard, the Veteran’s lumbar spine disability has been manifested by pain, and decreased range of motion. The Board observes that during the July 2007 VA examination, the appellant had forward flexion to 45 degrees, with an additional loss of 10 degrees of forward flexion following repetitive-use testing. Such findings are contemplated by a 20 percent rating. However, the appellant reported flare-ups of the lumbar spine during the VA examination. The examiner did not describe any additional limitation in range of motion during flare-ups. Notwithstanding, the February 2009 VA examination was conducted during an active flare-up. Range of motion testing revealed forward flexion to 5 degrees. As such range of motion testing during the period on appeal has shown that the Veteran’s range of motion has been limited to the extent necessary to meet the schedular requirement for a 40 percent disability rating. Thus, the Board finds that the Veteran’s service-connected lumbar spine disability has more nearly approximated the criteria for a 40 percent rating. However, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 40 percent. As noted herein, in order to warrant a rating in excess of 40 under the applicable criteria, the Veteran’s disability must be manifested by symptoms which more nearly approximate unfavorable ankylosis of the entire thoracolumbar spine. The clinical evidence, however, establishes that the Veteran retains motion in his spine, although with noted complaints of pain and limited range of motion. He has not contended otherwise. By definition, the fact that his spine manifests some range of motion is evidence of the absence of unfavorable ankylosis. The evidence further reflects that he exhibits none of the indicia of lumbosacral ankylosis as set forth in 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Absent a finding of unfavorable ankylosis, which has been neither shown nor alleged, a rating in excess of 40 percent for limitation of motion is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. Consideration has been given as to whether a higher rating is warranted based on incapacitating episodes. While the appellant reported incapacitating episodes during flare-ups at the time of the July 2007 VA examination, the clinical records contain no indication that the Veteran has been prescribed bed rest by any physician for his lumbar spine disability. As such a rating in excess of 40 percent is not warranted for incapacitating episodes. The Board has considered additional limitation of function per 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). In this regard, the record is clear that the Veteran experiences pain. Pain itself, however, does not constitute functional loss. Rather, the pain must produce functional loss which results in disability which more nearly approximates the next higher rating in order to warrant a higher rating. After reviewing the record, the Board concludes that the objective evidence does not reflect the functional equivalent of symptoms, supported by adequate pathology, required for the assignment of ratings in excess of those assigned herein based on functional loss, including due to pain. Additionally, the Board has considered all potentially applicable diagnostic codes in accordance with Schafrath v. Derwinski, 1 Vet. App. 589 (1991), but the Veteran’s lumbar spine disability could not receive a higher rating under an analogous diagnostic code. See 38 C.F.R. § 4.115 (b). The Board has also considered that the Rating Schedule specifically provides that neurological symptoms are to be rated separately under the appropriate diagnostic code. The evidence shows that a bladder dysfunction, bowel dysfunction, erectile dysfunction, and radiculopathy of the bilateral lower extremities have been associated with the Veteran’s service-connected lumbar spine disability. However, service connection has already been awarded for the diagnosed disabilities. As detailed herein, the Veteran has appealed the assigned rating for his bilateral radiculopathy of the lower extremities, which will be addressed in a subsequent Board decision. In sum, the Board finds that initial 40 percent rating for the Veteran’s lumbar spine disability is warranted throughout the rating period on appeal. However, the preponderance of the evidence is against assignment of a rating in excess of 40 percent. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Jones, Counsel