Citation Nr: 18151907 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-40 407 DATE: November 20, 2018 ORDER Entitlement to an initial disability rating in excess of 20 percent for degenerative disc disease/degenerative joint disease of the lumbar spine with spondylosis and lordosis is denied. FINDING OF FACT For the entire period on appeal, the Veteran’ degenerative disc disease/degenerative joint disease of the lumbar spine with spondylosis and lordosis has not been manifested by forward flexion of the thoracolumbar spine to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, unfavorable ankylosis of the entire thoracolumbar spine, incapacitating episodes of intervertebral disc syndrome (IVDS), or associated neurologic abnormalities. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 20 percent for degenerative disc disease/degenerative joint disease of the lumbar spine with spondylosis and lordosis have not been met for any period on appeal. 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 Codes (DCs) 5237, 5242 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1981 to May 1984. As a preliminary matter, the Board notes that additional VA treatment records, including an August 2017 VA examination report, have been associated with the claims file since the May 2016 statement of the case (SOC). Notably, although a supplemental statement of the case (SSOC) has not been issued, an August 2017 rating decision continued the denial of the Veteran’s increased rating claim based on a review of the relevant evidence of record, including the VA treatment records added since the May 2016 SOC. Additionally, the Veteran was properly notified by the Board in December 2017 regarding his opportunity to submit additional evidence in conjunction with his appeal. As such, the Board finds there is no prejudice to the Veteran that he received the RO’s adjudication of the issue on appeal as a rating decision rather than an SSOC, and the appeal may be adjudicated at this point without remanding to correct the administrative error, which would result in no benefit to the Veteran other than further delay of his appeal. The Board has also considered the assertion within the June 2018 appellant’s brief that the VA examinations of record are inadequate because they were not conducted by a specialist. However, as discussed below, the Board finds that an additional examination or opinion is not necessary to adjudicate the Veteran’s appeal. With respect to medical examinations and opinions obtained by VA, it is presumed that a VA examiner who is selected to provide a medical opinion in a particular case is competent to provide the requested opinion, absent clear evidence to the contrary. See, e.g., Nohr v. McDonald, 27 Vet. App. 124, 131-32 (2014). Moreover, in challenging an examiner’s competence, a claimant must set forth specific reasons as to why he or she believes that the expert is not qualified to give a competent opinion, which neither the Veteran or his representative have done. See id. at 132. Based on a review of the relevant examination reports, the Board finds that the examiners properly reviewed the Veteran’s medical records, addressed the Veteran’s subjective reports, and conducted relevant physical examinations, including full range of motion testing of the spine. As such, the Board finds that the presumption of regularity has not been rebutted with respect to the relevant VA spine examinations of record. Accordingly, the Board finds that an additional medical examination or opinion is not necessary to decide the Veteran’s claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 1. Entitlement to an initial disability rating in excess of 20 percent for degenerative disc disease/degenerative joint disease of the lumbar spine with spondylosis and lordosis. Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. When evaluating musculoskeletal disabilities based on limitation of motion, the adjudicator must consider functional loss caused by pain or other factors that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. Consideration must also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. Nonetheless, even when such background factors are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, and a separate or higher rating based on such factors alone is not appropriate. Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. With respect to the Veteran’s initial rating claim on appeal, the Board has considered such claim from the current effective date of January 19, 2012, as well as whether any staged rating periods are warranted. The Veteran’s service-connected degenerative disc disease/degenerative joint disease of the lumbar spine with spondylosis and lordosis is rated as 20 percent disabling from January 19, 2012 under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2017). The General Rating Formula provides the following, in pertinent part: a 20 percent disability rating is warranted for forward flexion of the thoracolumbar spine great than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not great than 120 degrees; or, muscle spasm or guarding severe enough to result ina n abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent disability rating is assigned for unfavorable ankylosis of the entire (thoracolumbar and cervical) spine. These ratings are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The Board acknowledges that IVDS may also be evaluated under the Formula for Rating IVDS; however, the provisions for evaluating IVDS do not warrant an increased disability rating for the Veteran’s lumbar spine disability for any period on appeal because the probative evidence of record does not document IVDS with incapacitating episodes and bed rest prescribed by a physician for any period on appeal. The General Rating Formula for Diseases and Injuries of the Spine also provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. However, the preponderance of the evidence is against a finding that the Veteran has associated objective neurologic abnormalities or findings related to his service-connected lumbar spine disability. Following a review of the evidence of record, the Board finds that the preponderance of evidence weighs against the Veteran’s claim of entitlement to an initial disability rating in excess of 20 percent for degenerative disc disease/degenerative joint disease of the lumbar spine with spondylosis and lordosis for the entire period on appeal. Upon VA spine examination in August 2013, the Veteran reported chronic back pain since his accident in 1984; he stated that could walk about half a mile and stand for about an hour. For work, he drove a harvester on a golf course, and although sitting for long periods of time aggravated his back, he just dealt with the pain. He noted flare ups once or twice per year where he was unable to get out of bed, but he denied losing any time at work over the past year. Upon physical examination, initial range of motion findings included forward flexion to 70 degrees, extension to 5 degrees, right lateral flexion to 20 degrees, left lateral flexion to 10 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 20 degrees, each with noted pain. Upon repetition, forward flexion was to 70 degrees, extension was to 10 degrees, bilateral lateral flexion was to 15 degrees, and bilateral lateral rotation was to 10 degrees. The examiner noted functional loss or impairment including less movement than normal, weakened movement, incoordination, impaired ability to execute skilled movements smoothly, and pain on movement. There was localized tenderness or pain to palpation of the paravertebral muscles bilaterally at L3-S1, and guarding or muscle spasm severe enough to result in an abnormal gait. Muscle strength was full (5/5) or active movement against some resistance (4/5), without atrophy. Reflexes and sensory testing were normal, with a negative straight leg raising test, no radicular pain or any other signs or symptoms due to radiculopathy, and no other neurologic abnormalities. There was no IVDS, and the Veteran did not require the use of assistive devices. Noted scars were not painful and/or unstable or having a surface area greater than 39 sq. cm. (6 sq. in). Diagnostic imaging documented arthritis, lumbar spondylosis, and straightening of the lumbar lordosis. The examiner concluded that the Veteran’s lumbar spine disability resulted in functional impact, without further comment. Most recently, upon VA spine examination in August 2017, the Veteran reported that his back condition has worsened since the prior VA examination. He reported constant back pain, with flare ups of pain every one to two months that confined him to bed for one to three days. Upon physical examination, initial range of motion findings included forward flexion to 55 degrees, extension to 10 degrees, bilateral lateral flexion to 15 degrees, and bilateral lateral rotation to 15 degrees, with pain noted upon examination, but without any additional loss of range of motion upon repetition. The examiner noted that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time or during flare ups, and concluded that he was unable to opine, without resorting to mere speculation, whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time or with flare ups, as such an opinion was not feasible given that any decrease in range of motion with repeated use over time or during flare ups was merely speculative and highly subjective (based on the Veteran’s word alone) as neither this medical provider nor any other medical provider is present to objectively and repetitively measure (with a goniometer) the change in range of motion with repeated use over time or during flare ups (and the Veteran denied objectively and repetitively measuring range of motion with a goniometer with repeated use over time or during flare ups). There was tenderness to palpation over the lumbosacral paravertebral muscles, without guarding or muscle spasms, with additional factors of disability, including disturbance of locomotion, interference with sitting (antalgic gait, restless and adjusts position frequently while sitting). Muscle strength, reflexes, and sensation were normal, without atrophy, radicular pain or other neurologic abnormalities, or ankylosis. There was no IVDS and the Veteran did not require the use of assistive devices. The examiner concluded that there was functional impact including difficulty with prolonged standing, walking, and weight bearing, but without any sedentary restrictions. VA treatment records during the appeal period document ongoing treatment of the Veteran’s chronic back pain. In January 2012, he reported decreased range of motion, without tenderness. Although a straight leg raising test was positive, sensation was intact in the bilateral extremities. A lumbar MRI documented moderate disc narrowing and mild herniations at multiple levels. In November 2013, the Veteran was noted to have decreased range of motion, including 50 percent forward flexion and extension, with a negative straight leg raising test and intact sensation in the lower extremities. In December 2014, the Veteran reported ongoing pain with range of motion, and although the physician noted symptoms of right lower extremity radiculopathy, there was no related diagnosis, including upon the most recent VA spine examination. Finally, a January 2015 lumbar spine MRI showed degenerative changes such as disc bulges and arthritis which caused some mild narrowing of the spinal canal and spinal nerve roots. Significantly, the evidence of record, including as discussed above, does not document any lumbar spine forward flexion to 30 degrees or less, or any ankylosis, favorable or unfavorable, during the appeal period. The Board acknowledges that VA treatment records throughout the appeal period from 2002 to the present document ongoing back pain; however, other than the VA examination reports discussed above, such records do not document specific range of motion findings that would warrant an evaluation in excess of 20 percent. To the extent that VA treatment records document inconsistent reports regarding potential right lower extremity radiculopathy, the Board affords more probative value to the objective VA examinations of record which consistently found that the Veteran did not have any signs or symptoms of radiculopathy or other associated neurologic abnormalities. The Veteran is competent to report his observable symptoms, such as ongoing chronic back pain; however, to the extent that the Veteran asserts that his lumbar spine disability is more severe than his current disability rating, the Board affords more probative value to the objective evidence of record, which does not warrant an initial disability rating in excess of 20 percent for any period on appeal. (Continued on the next page)   In conclusion, the Board has considered all potentially applicable provisions of the rating schedule; however, the preponderance of evidence does not document that the Veteran’s lumbar spine disability has resulted in limitation of motion of the lumbar spine including forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, DCs 5237, 5242 (2017). As such, there is no reasonable doubt to be resolved, and the claim is denied. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Chad Johnson, Counsel