Citation Nr: 18142931 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 09-50 463 DATE: October 17, 2018 ORDER Entitlement to an initial rating in excess of 40 percent for degenerative arthritis of the spine from April 12, 2011 is denied. FINDINGS OF FACT 1. The Veteran does not have unfavorable ankylosis of the entire thoracolumbar spine. 2. The Veteran did not suffer any incapacitating episodes from intervertebral disc syndrome. CONCLUSIONS OF LAW The criteria for assignment of a rating in excess of 40 percent for degenerative arthritis of the spine from April 12, 2011, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.71a, Diagnostic Code (DC) 5242.   REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from September 2000 to November 2007, including service in Iraq. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for degenerative disc disease of the lumbosacral spine, status post L5-S1 fusion, and assigned an initial 20 percent rating, effective November 29, 2007. In an April 2011 rating decision, the RO increased the rating for the Veteran’s low back disability to 40 percent, effective April 12, 2011, the date of a VA medical examination showing increased disability. In a June 2016 decision, the Board denied an initial rating in excess of 20 percent for the Veteran’s low back disability prior to April 12, 2011. The Board also awarded separate 10 percent ratings for mild incomplete paralysis of the left and right lower extremities. The issue of entitlement to a rating in excess of 40 percent for the Veteran’s low back disability from April 12, 2011, was remanded for additional evidentiary development. Following evidentiary development, the VA Appeals Management Center (AMC) continued the previous denial in a May 2018 supplemental statement of the case (SSOC). The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. Increased Rating 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. Where a claimant appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence “used to decide whether an [initial] rating on appeal was erroneous . . .” Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found. Id. 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In all cases, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511–12 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996); see Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the “authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence”). 1. Entitlement to a rating in excess of 40 percent for degenerative arthritis of the spine in excess of 40 percent after April 12, 2011 The Veteran contends that his service-connected degenerative arthritis of the spine (lumbar spine disability) warrants a rating in excess of 40 percent from April 12, 2011. The Veteran’s lumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242. All diseases and injuries of the spine other than intervertebral disc syndrome (IVDS) are rated under the general rating formula for diseases and injuries of the spine (general rating formula). IVDS is rated either under the general rating formula or under the Formula for Rating IVDS based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under the general rating formula, with regard to the thoracolumbar spine, a 40 percent rating is warranted for flexion of the thoracolumbar spine of 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or unfavorable ankylosis of the entire cervical spine. A higher rating of 50 percent requires an unfavorable ankylosis of the entire thoracolumbar spine, and a rating of 100 percent requires an unfavorable ankylosis of the entire spine. Disabilities of the spine may also be rated under the formula for rating IVDS based on incapacitating episodes (formula for rating IVDS). Incapacitating episodes of at least four weeks but less than six weeks during the past 12 months, warrant a 40 percent evaluation. A 60 percent evaluation is for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note 1 to the formula for rating IVDS defines incapacitating episodes as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. The evidence in this case consists of lay statements from the Veteran describing the severity of his service-connected lumbar spine disability, medical records, and VA examinations dated April 2011 and May 2018. In the April 2011 examination, the Veteran stated that he had no incapacitating episodes in the past 12 months that required bed rest prescribed by a physician and treatment by a physician. He also stated that his usual occupation is sedentary and that he had not missed a day of work due to his lumbar spine disability. The examiner observed no fixed deformity, or ankylosis. His recorded forward flexion was from 0 to 30 degrees, extension 0 to 10 degrees, left lateral flexion from 0 to 15 degrees, right lateral flexion from 0 to 30 degrees, and bilateral lateral rotation from 0 to 20 degrees, with objective evidence of pain with motion. The examiner expressly noted that the Veteran did not exhibit ankylosis. In the May 2018 examination, the Veteran again denied having any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The examiner also observed that there was no ankylosis of the spine. The Veteran’s range of movement improved, with forward flexion from 0 to 55 degrees with pain, extension from 0 to 25 degrees, bilateral lateral flexion from 0 to 20 degrees with pain, and bilateral lateral rotation from 0 to 30 degrees. The Board also reviewed the Veteran’s medical records, and there is no record of ankylosis or incapacitating episodes, nor of symptoms which would more nearly approximate ankylosis. In April 2011, the Veteran stated that his flare-ups occur two to three times a week lasting several minutes with muscle spasms that were not totally incapacitating. Applying the facts of this case to the legal criteria outlined above, the Board finds that an evaluation in excess of 40 percent from April 12, 2011 is not warranted under the general rating formula as the Veteran does not have unfavorable ankylosis, neither in the thoracolumbar spine nor the entire spine. Moreover, the Veteran does not exhibit symptoms which would more nearly approximate ankylosis. Examination shows that none of the indicia of ankylosis are present. For example, the spine is not fixed in flexion or extension, he does not exhibit difficulty walking because of a limited line of vision nor has his breathing been shown to be limited to diaphragmatic respiration, and he has not reported gastrointestinal symptoms due to pressure of the costal margin. The Board also finds that an evaluation in excess of 40 percent from April 12, 2011 is not warranted under the formula for rating IVDS as the Veteran did not suffer any incapacitating episodes requiring bed rest caused by his IVDS. As the preponderance of the evidence reflects the symptoms of the Veteran’s lumbar spine disability do not more nearly approximate the criteria for higher ratings, the benefit of the doubt doctrine is not for application and the claim for an increased rating must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.   The Board has considered a total disability rating based on individual unemployability due to service-connected disability (TDIU), pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453–54 (2009). However, absent any indication or allegation that the Veteran is unemployable as a result of his service-connected lumbar spine disability, a TDIU is not warranted. The Veteran stated in April 2011 that he was working and that he had not missed a day of work. In June 2018, he stated that he was retired and on worker’s compensation, but did not attribute his retirement to his service-connected disability. In addition, his recorded range of motion improved from April 2011 when he could still work. Thus, the record does not reasonably raise the issue of TDIU. Rice, 22 Vet. App. at 453–54. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Yun, Associate Counsel