Citation Nr: 18143611 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 16-19 556 DATE: October 19, 2018 ORDER Prior to January 13, 2015, entitlement to an evaluation in excess of 20 percent for service-connected lumbar degenerative joint disease with invertebral disc syndrome (IVDS) is denied. Beginning March 1, 2015, entitlement to a 40 percent evaluation, but no higher, for service-connected lumbar degenerative joint disease with IVDS is granted. Beginning March 25, 2016, entitlement to an evaluation in excess of 40 percent for service-connected lumbar degenerative joint disease with IVDS is denied. FINDINGS OF FACT 1. Prior to January 13, 2015, the Veteran’s lumbar spine disability has been more nearly manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but no greater than 60 degrees. 2. Beginning March 1, 2015, the Veteran’s lumbar spine disability has been more nearly manifested by forward flexion of the thoracolumbar spine to 30 degrees or less. 3. Beginning March 25, 2016, the Veteran’s lumbar spine disability has not been more nearly manifested by unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes of IVDS having a total duration of at least 6 weeks during a 12-month period. CONCLUSIONS OF LAW 1. Prior to January 13, 2015, the criteria for an evaluation in excess of 20 percent for lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5243 (2017). 2. Beginning March 1, 2015, the criteria for a 40 percent rating, but no higher, for lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5243 (2017). 3. Beginning March 25, 2016, the criteria for a rating in excess of 40 percent for lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5243 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1983 to June 2004. In his April 2016 VA Form 9, the Veteran limited his appeal to the issue of increased rating for lumbar spine disability. See April 2016 VA Form 9. A July 2014 rating decision granted an increased rating for lumbar degenerative joint disease with IVDS associated with sciatica (previously discogenic low back pain with chronic lumbar strain) from 10 percent to 20 percent, effective April 2, 2013. In a December 2016 decision review officer (DRO) decision, the Veteran was granted a temporary 100 evaluation for his lumbar spine disability, effective January 13, 2015, and a 20 percent rating was assigned beginning March 1, 2015. An April 2016 rating decision granted the Veteran an increased rating for his lumbar spine disability from 20 percent to 40 percent, effective March 25, 2016. Only the periods in which the Veteran is not in receipt of a 100 percent disability rating will be evaluated on appeal. Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA’s duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. The duty to notify has been met. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that “[A]bsent extraordinary circumstances . . . it is appropriate for the Board and the [United States Court of Appeals for Veterans Claims] to address only those procedural arguments specifically raised by the veteran....” Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The AOJ associated the Veteran’s relevant treatment records with the claims file. No other relevant records have been identified and are outstanding. As such, the Board finds VA has satisfied its duty to assist with the procurement of relevant records. The Veteran was afforded VA medical examinations in February 2014 and March 2016 in connection with his claim for increased rating for his lumbar spine disability. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide an examination or opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran’s representative has challenged the adequacy of the VA examinations by suggesting that the Veteran feels the examination “is quite possibly inadequate for rating purposes as asserted on his VAF 21-0958.”. See June 2018 DAV Appellant’s Brief. Specifically, the Veteran’s representative indicated that on the Veteran’s March 2015 VAF 21-0958, the Veteran wrote, “The pain in my right and left legs, and my lower back had continued to increase. I sought help through physical therapy and pain injection without relief. Somedays the pain was so severe, I was unable to move except for short distances. I believe my physical exam did show this.” However, the Board notes the Veteran stated that he believes his “physical exam did show this” which does not support that the exam was inadequate. Significantly, the February 2014 VA examination report noted that the Veteran reported experiencing flare-ups with the impact described as limited lifting, bending, sitting, standing, walking, and sleeping. Further, since the March 2015 statement by the Veteran, he was afforded a subsequent March 2016 VA examination. Regarding the adequacy of the March 2016 VA examination, the Veteran and representative have not raised any specific contentions regarding the findings contained in the March 2016 VA examination report. In the absence of specific evidence that the VA examinations are inadequate, the Board finds that the February 2014 and March 2016 VA examination reports, taken in light of the other lay and medical evidence of record, are thorough and adequate and provide a sound basis upon which to base a decision with regard to the issues on appeal. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the Court have held that the Board is entitled to presume the competence of a VA examiner and specific challenges to a VA examiner’s competency must be raised by the appellant to overcome this presumption, which the Veteran has not done in this case. See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009); Bastien v. Shinseki, 599 F.3d 1301 (Fed. Cir. 2010); Cox, 20 Vet. App. 563. The VA examiners reviewed the claims file, personally interviewed and examined the Veteran, including eliciting a history, conducted a physical examination, and included their findings in the report with sufficient detail. As such, the Board finds that the February 2014 and March 2016 VA examinations and reports provide adequate bases upon which to make a decision. Therefore, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities and are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two disability ratings applies, the higher disability 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. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the veteran’s disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In instances where the disability rating being appealed is the initial disability rating assigned with an original grant of service connection, the entire appeal period must be considered. Different disability ratings may be assigned for separate periods of time depending on the facts shown in the evidence, a practice known as “staged ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in the veteran’s favor. 38 C.F.R. §§ 3.102, 4.3. Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Lumbar spine disability The Veteran filed an April 2013 claim for increased rating for lower back condition. See April 2013 Third Party Correspondence. At the time of his claim, he was in receipt of a 10 percent initial disability rating pursuant to the criteria under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242. A July 2014 rating decision granted an increased rating for lumbar degenerative joint disease with IVDS from 10 percent to 20 percent, effective April 2, 2013, pursuant to the criteria under 38 C.F.R. § 4.71a, DC 5243. In a December 2016 decision review officer (DRO) decision, the Veteran was granted a temporary 100 percent evaluation for his lumbar spine disability, effective January 13, 2015, and a 20 percent rating was assigned beginning March 1, 2015. An April 2016 rating decision granted the Veteran an increased rating for his lumbar spine disability from 20 percent to 40 percent, effective March 25, 2016. The criteria for rating most spine disabilities are under DCs 5235 through 5242. DC 5237 governs disabilities that are due to lumbosacral or cervical strain. Regardless of which of the criteria between DC 5235 through 5242 that VA selects, disabilities characterized under those DCs are rated pursuant to the General Rating Formula for Diseases and Injuries of the Spine (Spine Formula). Under the Spine Formula, a 20 percent disability rating is assigned where the evidence demonstrates forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a 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 appropriate where there is evidence of forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is warranted where the disability has resulted in unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating contemplates unfavorable ankylosis of the entire spine. For VA compensation purposes, the “combined range of motion” refers to the sum of forward flexion, extension, left and right lateral flexion, and left and right rotation. 38 C.F.R. § 4.71a (Plate V) indicates that normal range of motion of the thoracolumbar spine consists of flexion to 90 degrees and extension, bilateral lateral flexion, and bilateral rotation to 30 degrees. As a point of reference, the normal combined range of motion of the thoracolumbar spine is 240 degrees. Ankylosis has been defined as, “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” See Lewis v. Derwinski, 3 Vet. App. 259 (1992). Under the IVDS Formula, IVDS that has resulted in incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months is assigned a 20 percent disability rating. IVDS resulting in incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months is assigned a 40 percent disability rating. A 60 percent disability rating contemplates IVDS with incapacitating episodes having a total duration of at least six weeks during the past twelve months. The regulation defines an “incapacitating episode” as being a period of acute signs and symptoms due to intervertebral disc syndrome that requires bedrest prescribed by a physician and treatment by a physician. Turning to the relevant evidence, for the period on appeal prior to January 13, 2015, the Veteran has not met the criteria for a rating in excess of 20 percent. The Veteran’s most reduced range of motion was reflected in his February 2014 VA examination report. Upon February 2014 VA examination, the Veteran was diagnosed with chronic lumbar strain with discogenic low back pain and lumbar degenerative joint disease with IVDS. See February 2014 VA examination report. The Veteran reported experiencing flare-ups with the impact described as limited lifting, bending, sitting, standing, walking, and sleeping. Initial range of motion testing showed forward flexion to 40 degrees with painful motion beginning at 40 degrees; extension to 10 degrees with painful motion beginning at 10 degrees; right lateral flexion to 10 degrees with pain beginning at 10 degrees; left lateral flexion to 15 degrees with pain beginning at 15 degrees; right lateral rotation to 30 degrees with pain beginning at 30 degrees; and left lateral rotation to 30 degrees with painful motion beginning at 30 degrees. The Veteran was able to perform repetitive-use testing after three repetitions and did not have additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing. The Veteran had functional loss and/or functional impairment noted by the examiner as less movement than normal and pain on movement. The Veteran did not have any other neurologic abnormalities or findings related to a thoracolumbar spine condition (such as bowel or bladder problems/pathologic reflexes). The Veteran did not have any incapacitating episodes over the past 12 months due to IVDS. The report further indicated that the Veteran’s posture was within normal limits and gait was within normal limits. The examiner indicated that there were contributing factors of pain, weakness, fatigability and/or incoordination and there is additional limitation of functional ability of the thoracolumbar spine during flare-ups or repeated use over time. The examiner determined that the degrees of range of motion loss during pain on use or flare-ups is approximately five degrees in all directions. In light of this evidence, the Board has calculated that the Veteran’s range of motion results more nearly approximate forward flexion to 35 (40 minus five) degrees; extension to five (10 minus five); right lateral flexion to five degrees; left lateral flexion to 10 (15 minus five); right lateral rotation to 25 (30 minus five) degrees; and left lateral rotation to 25 (30 minus five) degrees. Even in light of additional loss of range of motion due to pain, weakness, fatigability and/or incoordination on use, during flare-ups, or repeated use over time, the evidence shows that prior to January 13, 2015, the Veteran has demonstrated forward flexion to 35 degrees which is consistent with a 20 percent rating for range of motion greater than 30 degrees of forward flexion, but no greater than 60 degrees. Further, the February 2014 VA examination report indicated that the Veteran did not have any other neurologic abnormalities or findings related to a thoracolumbar spine condition (such as bowel or bladder problems/pathologic reflexes) and he did not have any incapacitating episodes over the past 12 months due to IVDS. In sum, the Board finds that the evidence does not supports that the Veteran has met or more nearly approximated the criteria for the next higher rating under the Spine Formula or IVDS Formula. The Board accepts that the Veteran has functional loss to include less movement than normal, pain on movement, and interference lifting, bending, sitting, standing, walking, and sleeping. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Furthermore, the Board finds the Veteran’s own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of symptoms required for a higher evaluation. The more probative evidence consists of that prepared by neutral skilled professionals, and such evidence demonstrates that the criteria for a rating in excess of 20 percent is not met or more nearly approximated prior to January 13, 2015. The Board has considered whether a higher disability evaluation is available under any other potentially applicable provision of the rating schedule for the period prior to January 13, 2015. However, a higher evaluation is not warranted based on any other provision. The Veteran is separately evaluated for neurological symptoms associated with bilateral radiculopathy for the entire period on appeal and the February 2014 VA examination report indicated the Veteran did not have neurologic abnormalities or findings related to a thoracolumbar spine condition (such as bowel or bladder problems/pathologic reflexes). Therefore, a separate evaluation is not warranted. Beginning March 1, 2015, the Board finds that a 40 percent rating, but no higher is warranted. Although the only range of motion testing recorded during the period beginning March 1, 2015, is in the March 2016 VA examination report, affording the Veteran the benefit of reasonable doubt, the Board finds this evidence represents his lumbar spine condition since March 1, 2015. Upon March 2016 VA examination, the Veteran reported flare-ups of the thoracolumbar spine with flare-ups and functional loss/functional impairment described as difficulty bending over; has to learn to bend over to pick up things; and his back affects lifting, bending, sitting, standing, walking, and no running, jumping, or climbing. Initial range of motion testing revealed that the Veteran had forward flexion to 20 degrees; extension to 10 degrees; right lateral flexion to 15 degrees; left lateral flexion to 10 degrees; right lateral rotation to 20 degrees; and left lateral rotation to 15 degrees. Pain was noted on examination and caused functional loss; there was no evidence of pain with weight bearing; range of motion itself contribute to a functional loss with lifting and bending; and there was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. The Veteran was able to perform repetitive-use testing with at least three repetitions and there was no additional loss of function or range of motion after three repetitions. The Veteran was not being examined immediately after repetitive-use over time and the examiner indicated the examination is medically consistent with the Veteran’s statements describing functional loss with repetitive-use over time. The examiner indicated that pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time with pain causing the functional loss. The examiner indicated that the resultant range of motion would be forward flexion to 20 degrees; extension to 10 degrees; right lateral flexion to 15 degrees; left lateral flexion to 10 degrees; right lateral rotation to 20 degrees; and left lateral rotation to 15 degrees. The examiner indicated that the Veteran’s examination was not being conducted during a flare-up and the examination is medically consistent with the Veteran’s statements describing functional loss during a flare-up. The examiner indicated that pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time with pain causing the functional loss. The examiner indicated that the resultant range of motion during a flare-up would be forward flexion to 15 degrees; extension to 5 degrees; right lateral flexion to 10 degrees; left lateral flexion to 5 degrees; right lateral rotation to 15 degrees; and left lateral rotation to 10 degrees. The examiner indicated that the Veteran did not have ankylosis of the spine and did not have any other neurologic abnormalities or findings related to a thoracolumbar spine condition (such as bowel or bladder problems/pathologic reflexes). The examiner indicated that the Veteran had IVDS and did not have 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. Thus, in consideration of pain, weakness, fatigability or incoordination significantly limiting functional ability during a flare-up, the Board finds that the Veteran’s forward flexion is limited to 15 degrees, which meets the criteria for a 40 percent rating for forward flexion of the thoracolumbar spine of 30 degrees or less. However, having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against an evaluation in excess of 40 percent for disability of the lumbar spine at any time during the appeal period. Neither the lay nor the medical evidence more nearly reflects unfavorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes of IVDS having a total duration of at least 6 weeks in a 12-month period. 38 C.F.R. § 4.7. The report of VA examination conducted in March 2016, along with relevant VA treatment records, show no ankylosis, favorable or otherwise, of the entire thoracolumbar spine. The examiner indicated that the Veteran did not have ankylosis of the spine and did not have any other neurologic abnormalities or findings related to a thoracolumbar spine condition (such as bowel or bladder problems/pathologic reflexes). The examiner indicated that the Veteran had IVDS and did not have 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. Although there is evidence of record showing restricted thoracolumbar range of motion, there is no indication that the Veteran’s symptoms are the equivalent of unfavorable ankylosis of the entire thoracolumbar. Also, treatment records do not demonstrate that the Veteran has unfavorable ankylosis or 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. In sum, neither the lay nor the medical evidence more nearly reflects lumbar spine disability manifested by unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes of IVDS having a total duration of at least 6 weeks during a 12-month period. The Board accepts that the Veteran has functional loss to include less movement than normal, pain on movement, and interference with bending, sitting, standing, walking, running, jumping, and climbing. See DeLuca, supra. Furthermore, the Board finds the Veteran’s own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of symptoms required for a higher evaluation. The more probative evidence consists of that prepared by neutral skilled professionals, and such evidence demonstrates that the criteria for a rating in excess of 40 percent is not met at any time during this appeal. In order to warrant a higher evaluation, there must be the functional equivalent of unfavorable ankylosis of the entire thoracolumbar spine. Pain alone does not constitute functional loss under VA regulations. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board has considered whether a higher disability evaluation is available under any other potentially applicable provision of the rating schedule beginning March 1, 2015. However, a higher evaluation is not warranted based on any other provision. The Veteran is separately evaluated for neurological symptoms associated with bilateral radiculopathy for the entire period on appeal, and the March 2016 VA examination report indicated the Veteran did not have neurologic abnormalities or findings related to a thoracolumbar spine condition (such as bowel or bladder problems/pathologic reflexes). Therefore, a separate evaluation is not warranted. (CONTINUED ON NEXT PAGE) In conclusion, the Board has determined that for the period prior to January 13, 2015, a rating in excess of 20 percent is not warranted; beginning March 1, 2015, a 40 percent rating, but no higher is warranted; and beginning March 25, 2016, a rating is excess of 40 percent is not warranted for lumbar spine disability. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Schick, Associate Counsel