Citation Nr: 18153087 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 15-10 563 DATE: November 27, 2018 ORDER Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine with intervertebral disc syndrome (IVDS) is denied. FINDING OF FACT Even considering his complaints of pain, pain on motion, and functional loss, the Veteran’s back disability has not resulted in thoracolumbar spine forward flexion limited to 30 degrees or less or ankylosis of the thoracolumbar spine; nor did he have incapacitating episodes of IVDS at any time during the appeal period. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine with IVDS have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1980 to May 1992. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The March 2014 rating decision continued the Veteran’s 20 percent rating and denied the Veteran’s request for a higher evaluation. Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine with IVDS The Veteran is seeking a higher evaluation for his service-connected back disability. The Veteran is currently assigned a 20 percent rating under Diagnostic Code 5243, for degenerative disc disease of the lumbar spine with IDVS. The Veteran also has separate 10 percent ratings for radiculopathy in his right and left lower extremities, as secondary to the service-connected back condition. Those ratings are not on appeal. Disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran’s condition. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (2002). However, where an increase in the level of a service-connected disability is at issue, such as here, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the veteran. See 38 C.F.R. § 4.3. Disabilities of the spine, including those rated under Diagnostic Code 5243, are rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. The General Rating Formula for rating Diseases and Injuries of the Spine provides a 20 percent rating for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A maximum 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. Normal combined range of motion of the thoracolumbar spine is 240 degrees. Normal ranges of motion for each component of spinal motion provided are the maximum usable for calculating the combined range of motion. 38 C.F.R. § 4.71a, Plate V, General Rating Formula for Diseases and Injuries of the Spine, Note 2. Alternatively, under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 40 percent rating is assigned when IVDS causes incapacitating episodes with a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. For purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. When evaluating disabilities of the musculoskeletal system, 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. See DeLuca v. Brown, 8 Vet. App. 202 (1995). 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. An adequate orthopedic examination should record the range of motion for pain on active motion and passive motion, in weight bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). An examination does not need to be conducted during an actual flare-up in order to account for additional functional impairment. Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). Instead, examiners are asked to estimate the functional impairment experienced during a flare-up, considering all competent evidence of functional loss that is available in the record. Id. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. However, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3. The Veteran contends that he is entitled to an increased rating for his service-connected back disability. In his July 2014 notice of disagreement, the Veteran stated that he suffers extreme flare-ups and requires medication to handle the pain. A February 2014 VA examination report shows that the Veteran had diagnoses of degenerative disc disease and IVDS. The Veteran stated that he could hardly sleep and had flare-ups last about a week, but the Veteran reported that flare-ups did not impact function. Forward flexion was recorded at 75 degrees and painful motion was noted at 75 degrees. The Veteran was able to perform repetitive use testing and there was no additional limitation in range of motion. There was functional loss noted with pain on movement and less movement than normal. Decreased sensation was noted in both feet during the sensory examination. The examiner noted that the Veteran had radicular pain in the bilateral lower extremities. All other evaluations were normal. The VA examiner indicated that the Veteran had IVDS, but noted that there were not any incapacitating episodes in the prior 12 months. During a VA examination in February 2017, the Veteran reported that his back pain progressively worsened and that the pain is worse with lifting and when going up and down stairs. The Veteran reported that his pain level is at an 8/10, but that the pain level goes up to a 10 at times. He said he cannot get down on the floor and spends most of his day watching television. The Veteran also reported experiencing flare-ups with a pain level of 10. The Veteran did not report having any functional loss or functional impairment during flare-ups. Range of motion testing from the February 2017 examination showed forward flexion to 50 degrees and extension to 25 degrees. The examiner indicated that there was pain on the examination for all range of motion testing but it did not result in functional loss. There was no evidence of pain with weight bearing, but there was objective evidence of localized tenderness or pain on palpation of the thoracolumbar spine. There was no additional loss of range of motion on repetitive use testing. There was no ankylosis of the spine. The examiner observed that functional ability was not limited by pain, weakness, fatigability or incoordination over time and repeated use or during flare-ups. The examination was not conducted during a flare-up, but the examiner indicated that the examination is medically consistent with the Veteran’s claims describing functional loss during flare-ups. The examination report indicated that the Veteran has IVDS, but there were no episodes requiring bedrest prescribed by a physician. Imaging of the lumbar spine from February 2017 showed mild degenerative changes with narrowing of disc spaces. The examiner opined that the Veteran should avoid repetitive bending, lifting, pushing, pulling, prolonged sitting or standing, and maintain an ideal body weight. As an aside, the examiner noted that it was hard to tell what the Veteran’s true functional range of motion was because the demonstrated activity in the room differed from that during the examination. The Board interprets this statement as an indication that the Veteran was over endorsing his symptoms when being examined. Based on the above, the Board finds that the criteria for a rating in excess of 20 percent is not warranted during the entire period on appeal. There is no evidence of forward flexion of the thoracolumbar spine 30 degrees or less. There is likewise not evidence that the Veteran experiences favorable ankylosis of the entire thoracolumbar spine. At its worst, the Veteran’s forward flexion is 50 degrees and, although pain was noted during flexion, pain did not result in functional loss. Additionally, there is evidence that the Veteran’s actual range of motion was greater than the 50 degrees noted on the examination, as forward flexion beyond 90 degrees was observed when the Veteran tied his shoes and the Veteran could robe and disrobe without issue. The Board concludes that the criteria for a 40 percent rating under the General Formula are not met or nearly approximated. The evidence does not show, nor does the Veteran allege, that he has been placed on doctor-prescribed bed rest for his back disability to warrant a rating in excess of 20 percent based on incapacitating episodes under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Despite the note of IVDS during the February 2014 and February 2017 examinations, the examiners did not find evidence of IVDS requiring physician prescribed bed rest and such is not shown at any point during the appeal period. Accordingly, a higher rating based on incapacitating episodes is not warranted. While the Veteran contended that his worsened back pain is related to nerve damage, the Veteran’s radiculopathy ratings are not before the Board on this appeal. Although the Board notes that the Veteran is competent to report symptoms of back pain, the Veteran is not competent to identify a specific level of disability according to the applicable diagnostic code. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Such competent evidence concerning the nature and extent of the Veteran’s service-connected low back disability has been provided by the VA medical professionals who examined him. The medical findings adequately address the criteria under which this disability is evaluated. The Board has considered whether a higher rating is appropriate under 38 C.F.R. §§ 4.40, 4.45, and 4.59, and concluded that such is not warranted. Pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Id. The Veteran’s complaints of painful motion were specifically accounted for in the VA examinations. The Board acknowledges the competent and credible lay reports of pain, numbness, and similar symptoms, but such evidence does not establish entitlement to a higher rating. In light of the probative evidence of record, the record does not support the claim for a higher rating of a lumbar spine disability. In reaching this determination, the Board is mindful that all reasonable doubt is to be resolved in the Veteran’s favor. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). However, because the preponderance of the evidence is against the claim, the claim must be denied. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Goreham, Law Clerk