Citation Nr: 18148261 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 12-00 454 DATE: November 7, 2018 ORDER 1. Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease of the lumbar spine prior to May 17, 2017, is denied. 2. Entitlement to an increased 20 percent disability rating, but no higher, for degenerative joint disease of the lumbar spine is granted effective May 17, 2017, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. Prior to May 17, 2017, degenerative joint disease of the lumbar spine, was not manifested by forward flexion of the thoracolumbar spine limited to 60 degrees or less, combined range of motion of the thoracolumbar spine less than 120 degrees; and the preponderance of the evidence is against findings of muscle spasm of guarding severe enough to result in an abnormal gait or spinal contour; or favorable or unfavorable ankylosis of the entire thoracolumbar spine and the Veteran did not have intervertebral disc syndrome (IVDS). 2. Affording the Veteran the benefit of the doubt, since May 17, 2017, the Veteran’s degenerative joint disease of the lumbar spine has exhibited forward flexion of the thoracolumbar spine to between 31 and 60 degrees and a combined range of motion of the thoracolumbar spine less than 120 degrees. 3. Since May 17, 2017, degenerative joint disease of the lumbar spine, has not exhibited forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable or unfavorable ankylosis of the entire thoracolumbar spine and the Veteran did not have intervertebral disc syndrome (IVDS). CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for degenerative joint disease of the lumbar spine, prior to May 17, 2017, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5243 (2017). 2. As of May 17, 2017, the criteria for a rating of 20 percent, but no higher, for degenerative joint disease of the lumbar spine have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5243 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1979 to October 1983, September 2002 to September 2003, and May 2004 to September 2009 with additional reserve service. In June 2018, the Regional Office (RO) granted an increased 20 percent disability rating for the Veteran’s degenerative joint disease of the lumbar spine, effective from January 2, 2018. As this was not a full grant of the benefits sought on appeal, and the Veteran did not indicate that she agreed with the rating, her claim has remained on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). The RO also granted separate evaluations for 1) radiculopathy of the femoral nerve of the right lower extremity and 2) radiculopathy of the sciatic nerve of the right lower extremity at a 10 percent disability rating each, effective January 2, 2018. The Veteran has not expressed disagreement with the ratings or effective dates of the separate grants. Specifically, the October 2018 appellant’s brief from her representative addressed only the initial 10 percent rating and the 20 percent rating since January 2, 2018 for degenerative joint disease of the lumbar spine. Therefore, the separate ratings for radiculopathy will not be addressed herein. In April 2017, the Veteran provided testimony in a Board hearing before the undersigned Veterans Law Judge at the Central Office in Washington, DC. A copy of the hearing transcript is associated with the claims file. In June 2017, the Board remanded the Veteran’s claim for additional development. There was substantial compliance with the Board’s remand directives to decide the claim on appeal. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease of the lumbar spine prior to January 2, 2018, and in excess of 20 percent thereafter. Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). The percentage ratings in the Rating Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Diagnostic Codes (DCs) are assigned by the rating officials to individual disabilities. DCs provide rating criteria specific to a particular disability. If two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies. See 38 C.F.R. § 4.7 (2017). When a question arises as to which of two ratings apply under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. See id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of a veteran. 38 C.F.R. § 4.3. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a) (2012). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40. 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. Under 38 C.F.R. § 4.45, functional loss due to weakened movement, excess fatigability, and incoordination must also be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Furthermore, 38 C.F.R. § 4.59 recognizes that painful motion is an important factor of disability. Joints that are painful, unstable, or misaligned, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id. Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011). All spinal disabilities are evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Degenerative disc disease of the lumbar spine is to be evaluated either under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (38 C.F.R. § 4.71a, DC 5243 (2017)), whichever method results in the higher rating. Under the General Rating Formula, a 20 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is 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 rating is warranted when the forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankyloses of the entire thoracolumbar spin. A 50 percent rating is assigned for unfavorable ankylosis of entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a, DC 5243. The General Rating Formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate DC. Id. at Note (1). 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. 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 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. Id. at Note (2). The Veteran contends that her lumbar spine disability should be rated higher than the assigned disability ratings of 10 percent prior to January 2, 2018, and 20 percent thereafter, under 38 C.F.R. § 4.71a, DC 5242-5010. During the April 2017 Board hearing, the Veteran testified that her back had gotten progressively worse since her first VA examination in 2010. She reported constant pain in which she had to limit her activity. Specifically, she would only be able to stand for an hour or two before she had to sit down or lay down due to pain. The Veteran explained that she did not experience many flare-ups, however would occasionally when she did intense labor, including lifting, shopping, and household chores. She also indicated that she had radiating pain down to her hips, when she was active. In the March 2010 examination report, the Veteran reported constant 4 to 5 out of 10 pain, with flare-ups 3 to 4 times per week with a duration of 2 to 3 hours, which could be exacerbated by prolonged standing, walking, gardening, and exercise. She indicated that the pain was relieved by warm showers and lying down. The Veteran reported 7 out of 10 pain during flare-ups and that she would rest during flare-ups and sometimes took Advil or Motrin for relief. The Veteran denied bowel or bladder problems and did not have incapacitation episodes of spine disease. She had a limitation of walking of 1 to 3 miles. A physical examination revealed normal posture, head position with symmetry in appearance, and gait. There were no abnormal spinal curvatures including gibbus, kyphosis, list, lumbar flattening, lumbar lordosis, scoliosis, reverse lordosis, nor ankylosis. There was no evidence of tenderness, guarding, muscle spasm, pain with motion, weakness, nor atrophy. The Veteran’s lumbar spine range of motion exhibited forward flexion to 100 degrees, extension to 30 degrees, left lateral flexion to 30 degrees, right lateral flexion to 30 degrees, left lateral rotation to 45 degrees, and right lateral rotation to 45 degrees. The combined range of motion was 280 degrees. The examiner indicated that there was no objective evidence of pain following repetitive motion nor additional limitations after three repetitions of range of motion. Muscle tone was normal and Lasègue’s sign test was negative. A December 2010 VA medical record reflects a negative straight leg raise and normal range of motion for forward flexion, forward extension, lateral flexion, and lateral rotation, with pain on forward flexion range of motion testing but no tenderness over palpation of spinous processes. A January 2015 VA medical record reflects a negative straight leg raise and normal range of motion for forward flexion, forward extension, lateral flexion, and lateral rotation, with pain on forward flexion and extension range of motion testing but no tenderness over palpation of spinous processes or paraspinal muscle tenderness. A May 2017 private medical record reflects range of motion measurements of flexion 38/60 degrees, extension 10/25 degrees, left rotation 25/30 degrees, right rotation 15/30 degrees, left lateral flexion 15/25 degrees, and right lateral flexion 15/25 degrees; with pain on all ranges of motion and measured using manual goniometry. In a January 2018 VA examination report, the Veteran reported flare-ups of the back as severe back pain associated with periodic spasm. She reported daily intermittent back pain that radiated to the left hip with a 7 out of 10, which was not relieved without medication and the use of Tylenol sometimes as needed. The Veteran reported functional loss or functional impairment of the back regardless of repetitive use of stiffness and pain with prolonged standing. The Veteran’s lumbar spine range of motion showed forward flexion to 70 degrees, extension to 20 degrees, left lateral flexion to 20 degrees, right lateral flexion to 20 degrees, left lateral rotation to 25 degrees and right lateral rotation to 25 degrees with pain on all ranges of motion. The combined range of motion was 180 degrees. Range of motion itself contributed to a functional loss, which limited the Veteran’s ability to bend, twist, and turn due to pain. There was evidence of pain with weight bearing and lumbar sacral region tenderness with palpation. The Veteran was able to perform repetitive-use testing with three repetitions, however, there was additional loss of function or range of motion after three repetitions. Range of motion measurements were forward flexion to 60 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees; for a combined range of motion of 145 degrees. The Veteran was examined immediately after repetitive use over time and pain, weakness, and lack of endurance limited functional ability with repeated use over a period of time. Range of motion measurements were forward flexion to 55 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 15 degrees; for a combined range of motion of 115 degrees. The Veteran was not examined during a flare-up, however, the examiner indicated that pain, weakness, and lack of endurance significantly limited functional ability with flare-ups. The examiner described the limitation in range of motion measurements of forward flexion to 50 degrees, extension to 5 degrees, right lateral flexion to 5 degrees, left lateral flexion to 5 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 10 degrees; for a combined range of motion of 85 degrees. The examiner indicated that there was evidence of pain on passive range of motion testing of the back and pain when the joint is used in non-weight bearing. The Veteran did not have guarding or muscle spasm of the back. Furthermore, the examiner indicated that the Veteran did not have muscle atrophy, ankylosis of the spine, nor IVDS of the thoracolumbar spine. While the Board has considered the lay evidence of record, to include the Veteran’s April 2017 testimony at the Board hearing, the Board finds the contemporaneous medical records to be the most probative evidence. After affording the Veteran the benefit of the doubt, since May 17, 2017, the Veteran’s degenerative joint disease of the lumbar spine disability exhibited forward flexion of the thoracolumbar spine to between 31 and 60 degrees, and combined motion of the thoracolumbar spine of 120 degrees or less, which establishes entitlement to an increased 20 percent rating. A VA medical record of May 17, 2017, showed forward flexion range of motion measurement of 38/60 degrees and combined range of motion of 118 degrees for the thoracolumbar spine, therefore a 20 percent rating is warranted from this date. 38 C.F.R. § 4.71a, DC 5243. The evidence indicates that during the appeal period prior to May 17, 2017, the Veteran’s lumbar spine disability manifested with pain and limitation of motion, however, forward flexion of the thoracolumbar spine was not limited to 60 degrees or less, combined range of motion of the thoracolumbar spine was not less than 120 degrees; muscle spasm of guarding severe enough to result in an abnormal gait or spinal contour was not shown; and favorable or unfavorable ankylosis of the entire thoracolumbar spine has also not been shown. At worst, forward flexion of the thoracolumbar spine was 100 degrees during the March 2010 VA examination with a combined range of motion of 280 degrees. VA medical records from December 2010 and January 2015 reflect normal range of motion. The Veteran has also not experienced incapacitating episodes due to IVDS. Accordingly, a disability rating in excess of 10 percent for a lumbar spine disability prior to May 17, 2017, is not warranted. The evidence also indicates that during the appeal period since May 17, 2017, the Veteran’s lumbar spine disability manifested with pain and limitation of motion, however, forward flexion of the thoracolumbar spine was not limited to 30 degrees or less; and favorable or unfavorable ankylosis of the entire thoracolumbar spine has not been shown. At worst, forward flexion of the thoracolumbar spine was 38/60 degrees shown in a May 2017 private medical record. Furthermore, the January 2018 VA examiner made a specific finding that there was no ankylosis of the spine. The Veteran did not have IVDS of the thoracolumbar spine, also noted in the January 2018 VA examination report. Accordingly, a disability rating in excess of 20 percent for a lumbar spine disability since May 17, 2017, is not warranted. The Board has considered whether a higher rating should be assigned pursuant to 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, and Mitchell criteria, but a higher rating is not warranted for the Veteran’s disability picture. The range of motion testing conducted during the medical evaluations considered the thresholds at which pain limited motion. The Veteran reported functional impairment of limited capacity for physical activity and prolonged standing, and increased pain during flare-ups. However, the March 2010 VA examination report indicates that the Veteran had no objective evidence of pain following repetitive motion nor additional limitations after three repetitions of range of motion. December 2010 and January 2015 VA medical records, which reflect normal range of motion are consistent with the March 2010 VA examiner’s findings. The January 2018 VA examiner indicated that the Veteran was not examined during a flare-up but described the limitation in range of motion measurements of forward flexion to 50 degrees, extension to 5 degrees, right lateral flexion to 5 degrees, left lateral flexion to 5 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 10 degrees; for a combined range of motion of 85 degrees. The Veteran’s representative argued in an October 2018 appellant’s brief that the VA examiner did not consider that flare-ups were present, however, the Board finds, as discussed above, that flare-ups have been considered by the VA examiners in their evaluation of the Veteran. To the extent that the Veteran has asserted that she had limited capacity for physical activity and prolonged standing due to pain that she experienced, the Board finds that the VA examiners have fully considered these factors as discussed above, and the respective evaluations contemplate pain and how it affects a person, such as difficulty walking and standing because of pain and other physical activity because of pain. Although the Board is required to consider the effect of pain when making a rating determination, it is important to emphasize that the rating schedule does not provide a separate rating for pain. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). After considering the effects of pain and functional loss, prior to May 17, 2017, forward flexion is not limited to 60 degrees or less for the thoracolumbar spine; combined range of motion of the thoracolumbar spine was not less than 120 degrees; or findings of muscle spasm of guarding severe enough to result in an abnormal gait or spinal contour, to warrant an increased 20 percent rating. Additionally, after May 2017, forward flexion has not limited to 30 degrees or less and favorable ankylosis of the entire thoracolumbar spine is not shown to warrant an increased 40 percent rating. Thus, higher ratings under 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, and Mitchell criteria are not approximated in the Veteran’s disability picture for the entire appellate period. Separate ratings for neurological abnormalities, other than radiculopathy, associated with the Veteran’s thoracolumbar spine disability (since she was granted ratings for her radiculopathy in her lower extremities) were also considered but are not warranted. The Veteran denied bowel or bladder problems during the March 2010 examination. The January 2018 VA examiner indicated that the Veteran did not have these neurological abnormalities related to the thoracolumbar spine disability; to include bowel or bladder problems. Accordingly, a separate rating for neurological symptoms is not applicable. Further, the Board has considered the Veteran’s testimony from the April 2017 Board hearing. The Veteran testified to constant pain, which limited her activity, specifically, that she would only be able to stand for an hour or two before she had to sit down or lay down due to pain. The Veteran also reported similar symptoms during the VA examinations provided. The Board finds that the VA examiners have fully addressed these symptoms as reported by the Veteran and the Board has fully considered them in evaluating the Veteran’s disability rating. In sum, affording the Veteran the benefit of the doubt, since May 17, 2017, the Veteran’s lumbar spine disability manifested in forward flexion of the thoracolumbar spine between 31 and 60 degrees, which warrants an increased 20 percent disability rating. However, the preponderance of the evidence is against a finding that a disability rating in excess of 10 percent for degenerative joint disease of the lumbar spine prior to May 17, 2017, and in excess of 20 percent thereafter, is warranted. As the preponderance of the evidence is against the claim for higher ratings, to this extent, the benefit of the doubt doctrine is not for application, and the Veteran’s claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Cheng, Associate Counsel