Citation Nr: 18144740 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 14-07 171A DATE: October 25, 2018 ORDER A rating of 20 percent, but no higher, for degenerative disc disease with facet arthritis, lumbar spine, is granted. FINDING OF FACT The Veteran’s lumbar spine disability has been manifested by painful motion, muscle spasm and lumbar flattening at times; however, flexion limited to 30 degrees or less or incapacitating episodes of intervertebral disc syndrome (IVDS) having a total duration of at least 4 weeks has not been shown. CONCLUSION OF LAW The criteria for a rating of 20 percent for degenerative disc disease with facet arthritis, lumbar spine, have been more nearly approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5237, 5243 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service from August 1966 to July 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). A transcript of the Veteran’s testimony presented at a November 2014 videoconference hearing before the undersigned Veterans Law Judge is of record. The claim was remanded by the Board in June 2015. 1. Entitlement to a rating higher than 10 percent for degenerative disc disease with facet arthritis, lumbar spine. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. 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). Service connection was originally established for lumbosacral strain in an August 1971 rating decision. The disability was recharacterized as degenerative disc disease with facet arthritis, lumbar spine, in an April 2011 rating decision. The Veteran filed the instant claim for an increased rating in December 2012. The October 2013 rating decision that is the subject of this appeal continued the 10 percent rating assigned under Diagnostic Code 5237. The Veteran testified in November 2014 that he is entitled to a higher, namely 40 percent, rating because he has bad back strains that last more than four weeks at a time. His symptoms include the inability to sit or stand for long; numbness in his legs; and impaired sleep. The Veteran also reported constant pain; stiffness; spasm; and tingling. He denied being recently prescribed bed rest by a doctor. The Veteran also reported that he was unable to bend straight over and had to squat to pick things up. Disabilities of the spine are to be rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, and they “are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine.” 68 Fed. Reg. 51,454 (Aug. 27, 2003). Any associated objective neurologic abnormalities are to be rated separately from orthopedic manifestations under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1). Under the General Rating Formula, ratings in excess of 10 percent pertinent to the lumbar spine are 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 (20 percent); forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine (40 percent); and for unfavorable ankylosis of the entire thoracolumbar spine (50 percent). Id. Note (2) of the General Rating Formula 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 normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a. Alternatively, IVDS can be rated under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). This formula provides a 20 percent rating for IVDS 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 rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Note (1). Upon review of the evidence and after resolving all doubt in the Veteran’s favor, the Board finds that the Veteran’s subjective complaints and the objective findings more nearly approximate the criteria for a 20 percent rating during the course of the appeal. Although the Veteran’s thoracolumbar spine exhibited forward flexion limited, at worst, to 70 degrees, and his combined range of motion has consistently been 180 degrees, there is evidence of spasm and lumbar flattening, but no evidence of guarding and no evidence the spasm results in abnormal gait or abnormal spinal contour. See VA examination reports dated January 2013 and May 2014; VA and private treatment records. However, after consideration of functional impairment and effects of pain on functional abilities, as noted in the lay and medical evidence, the Board finds the criteria for a 20 percent rating have been more nearly approximated. However, a rating in excess of 20 percent is not warranted. At no time has flexion of the lumbar spine been limited to 30 degrees or less. The Board acknowledges the subjective complaints noted during the Veteran’s Board videoconference hearing as discussed above, as well as the objective evidence of functional impairment in the form of less movement than normal, pain on movement, and interference with sitting, standing and/or weight bearing following repetitive use during the January 2013 VA examination; the objective evidence of pain with range of motion noted during private treatment in October 2013; and the objective evidence of muscle spasm, tenderness, and functional impairment in the form of less movement than normal and pain on movement following repetitive use during the May 2014 VA examination. A May 2017 VA physical therapy record also noted the Veteran’s report of improved tolerance to driving and sitting and that he had less pain and could get around with greater ease. Considering the foregoing, the Board finds that a rating higher than 20 percent for the Veteran’s lumbar spine disability is not warranted based on functional impairment. 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-06. Nor is the assignment of an increased rating for the Veteran’s lumbar spine disability warranted under the IVDS Formula. This is so because there is no evidence of incapacitating episodes having a total duration of at least 4 weeks during the past 12 months. See VA and private treatment records. The May 2014 VA examiner also noted there had been no incapacitating episodes in the past year and the Veteran denied being recently prescribed bed rest during his November 2014 hearing. The Board has also considered whether the Veteran’s service-connected lumbar spine disability manifests any associated objective neurologic abnormalities. Although the Veteran had hypoactive bilateral knee reflexes at the time of the January 2013 VA examination, muscle strength and sensory examinations were normal during that examination and the May 2014 examination, and straight leg raise testing was bilaterally negative during both VA examinations. In addition, both VA examiners indicated that there were no signs or symptoms of radiculopathy and no other neurologic abnormalities associated with the lumbar spine disability. A finding of right sided lateral femoral cutaneous nerve condition made during the May 2014 VA examination was found to be due to obesity, not the lumbar spine disability. See 38 C.F.R. § 4.14 (the use of manifestations not related to service connected disability is to be avoided). Thus, there are no associated objective neurologic abnormalities warranting a separate rating in this case. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against a rating higher than that assigned, the doctrine is not applicable. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel