Citation Nr: 18145709 Decision Date: 10/30/18 Archive Date: 10/29/18 DOCKET NO. 16-39 237 DATE: October 30, 2018 ORDER An initial rating in excess of 20 percent for degenerative disc disease (DDD) of the lumbar spine with intervertebral disc syndrome (IVDS), status post diskectomy prior to January 6, 2017, is denied. A rating in excess of 40 percent for DDD of the lumbar spine with IVDS status post diskectomy since January 6, 2017, is denied. FINDINGS OF FACT 1. The Veteran had active service from January 2002 to July 2014. 2. Prior to January 6, 2017, the Veteran’s lumbar spine disability was manifested by subjective complaints of low back pain and limited movement; objective findings included forward flexion limited to 60 degrees but no ankylosis or incapacitating episodes of IVDS requiring prescribed treatment. 3. Since January 6, 2017, the Veteran’s lumbar spine disability has been manifested by subjective complaints of chronic pain and limited movement; objective findings included flexion to 25 degrees, but no ankylosis or incapacitating episodes of IVDS requiring prescribed treatment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for DDD of the lumbar spine prior to January 6, 2017, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5242-5243 (2017). 2. The criteria for a rating in excess of 40 percent for DDD of the lumbar spine since January 6, 2017, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, DCs 5242-5243 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that the Veteran filed a new claim for an increased rating for her low back disability during the pendency of the appeal. A March 2017 rating decision increased the disability rating from 20 percent to 40 percent, from January 6, 2017 for the Veteran’s low back disability. Accordingly, the Board will adjudicate the appeal in terms of a staged rating in excess of 20 percent prior to January 6, 2017 and in excess of 40 percent from January 6, 2017. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Lumbosacral spine disabilities are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, DCs 5237-5243. IVDS is rated under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Veteran has been rated under DCs 5242 and the Board will consider all relevant diagnostic codes. A higher rating will be warranted when the objective medical evidence shows the following: • forward flexion of the thoracolumbar spine 30 degrees or less (40 percent); • favorable ankylosis of the entire thoracolumbar spine (40 percent); • incapacitating episodes of IVDS having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40 percent). • unfavorable ankylosis of the entire thoracolumbar spine (50 percent). Any associated objective neurologic abnormalities should be evaluated separately, under an appropriate diagnostic code. DC 5242, Note 1. The Veteran is already service-connected and separately compensated for radiculopathy of the left lower extremity. An “incapacitating episode” for purposes of totaling the cumulative time is defined as “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.” DC 5243, Note 1. Prior to January 6, 2017 At a December 2013 VA examination, the Veteran’s diagnosis of DDD of the lumbar spine was confirmed after she complained of significant shooting pain, which resulted in an intervening surgery. She denied any associated flare-ups at that time. Range of motion measurements of her thoracolumbar spine revealed forward flexion to 80 degrees, with objective evidence of painful motion at 65 degrees, extension to 30 degrees or greater, without evidence of pain, right and left lateral flexion to 30 degrees or greater without evidence of pain, and right and left lateral rotation of 30 degrees or greater, without evidence of pain. She was able to complete repetitive use testing, and there were no additional limitations in range of motion following the testing. There was no pain on palpation, muscle spasm, guarding, IVDS or ankylosis. At an August 2015 VA examination, the Veteran complained of worsening pain and an inability to stand up straight, kneel, or climb. Her diagnosis was continued, and the examiner found range of motion measurements revealing forward flexion to 60 degrees; extension to 10 degrees; right and left lateral flexion to 15 degrees; and right and left lateral rotation to 15 degrees. She was able to complete repetitive use testing without additional limitations in range of motion. The examiner found that she had limited ambulation potential secondary to pain. However, there were no muscle spasms, guarding, muscle atrophy, or ankylosis. The examiner further found that the Veteran had IVDS, but that it did not result in any prescribed bed rest which was prescribed by a physician and treatment in the preceding 12 months. At an October 2016 VA examination, the Veteran complained of continuing daily back pain, with radiation of pain and numbness to her lower extremity, and flare ups which occurred with heavy lifting, walking for prolonged periods of time, bending and stooping. Range of motion measurements revealed forward flexion to 60 degrees; extension to 20 degrees; right lateral flexion to 15 degrees; left lateral flexion to 20 degrees; and right and left lateral rotation to 15 degrees. The Veteran was able to complete repetitive use testing without additional limitations in range of motion. The examiner identified pain on examination which could contribute to functional loss, but found no evidence of localized tenderness, pain on palpation, guarding, muscle spasm, muscle atrophy, or ankylosis. Once again, the Veteran was found to have IVDS, but the examiner noted that IVDS did not result in any episodes requiring bed rest prescribed by a physician and treatment by a physician for such in the preceding 12 months. The Veteran’s VA and private treatment records were also reviewed for the relevant time period. While complaints of back pain were prevalent in the records, at no point was forward flexion of less than 30 degrees, nor were ankylosis or IVDS resulting in prescribed bed rest or treatment in the preceding 12 months identified. Having carefully reviewed and considered the Veteran’s contentions in light of the evidence of record and the applicable law, the Board finds that the Veteran’s lumbar spine disability was appropriately rated as 20 percent disabling prior to January 6, 2017. To warrant a rating in excess of 20 percent, forward flexion of the low back must be 30 degrees or less, or favorable or unfavorable ankylosis of the entire thoracolumbar spine must be shown. Prior to January 6, 2017, every measurement of forward flexion exceeded 30 degrees, and no ankylosis was shown, even upon consideration of actual functional impairment from pain, weakness, fatigue, or lack of coordination with repeated movement. Repetitive use testing also revealed no such results. Furthermore, while IVDS was diagnosed during the relevant appeal period, at no time was IVDS productive of prescribed bed rest or treatment by a doctor for such in the preceding 12 months. Since January 6, 2017 In January 2017, the Veteran was afforded another VA examination to assess the severity of her lumbar spine disability. Her previous diagnosis of DDD and IVDS were continued, and she reported increasing back pain and flare-ups following increased physical activity which limited her ability to stand or sit for long periods. Range of motion measurements revealed forward flexion to 30 degrees, extension to 10 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 25 degrees. The Veteran was able to complete repetitive use testing without any additional limitation in range of motion. However, pain was noted on examination which resulted in functional loss, as well as evidence of pain with weight bearing. While she was not tested based on repetitive use over time, the examiner estimated that the range of motion under such conditions would result in range of motion measurements of forward flexion to 25 degrees, extension to 5 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 20 degrees. There was no localized tenderness or pain on palpation, but guarding and muscle spasm resulting in abnormal gait or spinal contour were present. There was no muscle atrophy or ankylosis. The examiner found that the Veteran did have IVDS, but that it did not result in acute signs or symptoms which required bed rest prescribed by a physician or treatment by a physician in the preceding 12 months. Once again, the Veteran’s VA and private treatment records were also reviewed for the relevant time period. While complaints of back pain were sporadic in the records, at no point was ankylosis noted as present. Having carefully reviewed and considered the Veteran’s contentions in light of the evidence of record and the applicable law, the lumbar spine disability has been appropriately rated as 40 percent disabling since January 6, 2017. To warrant a rating in excess of 40 percent, unfavorable ankylosis of the entire thoracolumbar spine must be shown. As of January 6, 2017, no ankylosis has been shown, even upon consideration of actual functional impairment from pain, weakness, fatigue, or lack of coordination with repeated movement. With regard to both time periods, the Board has considered the Veteran’s lay statements that her disability is worse. While she is competent to report symptoms because this requires only personal knowledge as it comes to her through her senses, Layno v. Brown, 6 Vet. App. 465, 470 (1994), she is not competent to identify a specific level of disability off this disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s low back disability has been provided by the medical personnel who have examined her during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability evaluated. Moreover, as the examiner has the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinion great probative value. As such, these records are more probative than the Veteran’s subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Yacoub, Associate Counsel