Citation Nr: 18142221 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 07-31 518 DATE: October 15, 2018 ORDER An increased disability rating for degenerative joint disease of the lumbar spine (lumbar spine disability) in excess of 20 percent from June 22, 2009 to June 7, 2011 is denied. An increased disability rating for degenerative joint disease of the lumbar spine (lumbar spine disability) in excess of 40 percent from June 7, 2011 is denied. FINDINGS OF FACT 1. For the rating period on appeal from June 22, 2009 to June 7, 2011, the service-connected lumbar spine disability has been manifested by pain, stiffness, and limitation of forward flexion greater than 30 degrees, without ankylosis, limitation of forward flexion to 30 degrees or less, or incapacitating episodes requiring physician ordered bed rest having a total duration of at least four weeks during a 12 month period. 2. For the rating period on appeal from June 7, 2011 forward, the service-connected lumbar spine disability has not been manifested by ankylosis of the thoracolumbar spine and/or incapacitating episodes with a total duration of at least six weeks during a 12 month period. CONCLUSIONS OF LAW The criteria for an increased disability rating for the service-connected lumbar spine disability in excess of 20 percent from June 22, 2009 to June 7, 2011, have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242-5237. The criteria for an increased disability rating for the service-connected lumbar spine disability in excess of 40 percent from June 7, 2011 have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242-5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from December 1964 to September 1968. An Increased Rating for the Lumbar Spine Disability 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. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, 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. 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. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. The Veteran is in receipt of a 20 percent disability rating for the lumbar spine disability from June 22, 2009 to June 7, 2011, and a 40 percent rating from June 7, 2011 forward under the General Rating Formula. See 38 C.F.R. § 4.71a, Diagnostic Code 5242-5237. The Veteran generally contends that an increased disability rating for the lumbar spine disability is warranted. See May 2013 Board hearing transcript. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine for Diagnostic Codes 5235 to 5243, unless 5243 is rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS 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 rating is provided 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 provided for forward flexion of the thoracolumbar spine 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. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. 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 rated under an appropriate diagnostic code. Note (2) (See also Plate V) provides that, for VA compensation purposes, normal forward flexion of the lumbar 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 lumbar 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) instructs to round each range-of-motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire lumbar 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. Under Diagnostic Code 5243 (Intervertebral Disc Syndrome), a 10 percent disability rating is assigned with incapacitating episodes having a total duration of at least 1 weeks but less than 2 weeks during the past 12 months; a 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent disability rating is assigned with 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 intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2) provides that 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 should 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 rating for that segment. From June 22, 2009 to June 7, 2011 After a review of all the evidence, lay and medical, the Board finds that for the rating period on appeal from June 22, 2009 to June 7, 2011, the criteria for an increased rating in excess of 20 percent for the lumbar spine disability have not been met or more nearly approximated. Throughout the rating period on appeal from June 22, 2009 to June 7, 2011, the lumbar spine disability has been manifested by pain, stiffness, and limitation of forward flexion greater than 30 degrees, without ankylosis (criteria for a 40 percent rating), limitation of forward flexion to 30 degrees or less (criteria for a 40 percent rating), or incapacitating episodes requiring physician ordered bed rest having a total duration of at least four weeks during a 12 month period (criteria for a 40 percent rating). A July 2009 VA examination report, VA treatment records, and private treatment records throughout the rating period from June 22, 2009 to June 7, 2011, show that forward flexion in the thoracolumbar spine, was at most, limited to 55 degrees, even when considering additional functional limitation following repetitive use. See July 2009 VA examination report. The evidence of record demonstrates negative findings for ankylosis in thoracolumbar spine. See e.g. September 2009 VA treatment record; December 2010 private treatment record; May 2011 private treatment record. Additionally, the July 2009 VA examination report shows the Veteran denied any incapacitating episodes of lower back pain. From June 7, 2011 The Board further finds that for the rating period from June 7, 2011 forward, the criteria for an increased disability rating in excess of 40 percent for the lumbar spine disability have not been met or more nearly approximated. A June 2011 VA examination report shows the Veteran denied experiencing any incapacitating episodes of lower back pain; forward flexion in the thoracolumbar spine was measured from 0 to 30 degrees, which by virtue of finding the thoracolumbar spine was capable of range of motion, indicates a negative finding for ankylosis. Moreover, an April 2016 VA examination report reflects negative findings for ankylosis and incapacitating episodes requiring physician ordered bed rest. Based on the foregoing, the Board finds that the preponderance of the evidence is against the assignment of an increased disability rating for the lumbar spine disability in excess of 20 percent from June 22, 2009 to June 7, 2011, and in excess of 40 percent from June 7, 2011. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Choi, Associate Counsel