Citation Nr: 18154319
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 16-00 007
DATE:	November 29, 2018
ORDER
Entitlement to an initial rating in excess of 50 percent for degenerative arthritis, spine post status of lumbar discectomy and fusion is denied.
FINDING OF FACT
For the entire appeal period, the Veteran’s degenerative arthritis of the spine, post status of lumbar discectomy and fusion has been manifested by ankylosis of the entire thoracolumbar spine, with no evidence of ankylosis of the entire spine at any time during the appeal period.
CONCLUSION OF LAW
The criteria for a rating in excess of 50 percent for degenerative arthritis of the spine, post status of lumbar discectomy and fusion are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5242.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty in the United States Army from February 1980 to February 1983.
This matter comes before the Board of Veterans’ Appeals (Board) from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).
Entitlement to an initial rating in excess of 50 percent for degenerative arthritis, spine post status of lumbar discectomy and fusion is denied.
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations.  38 U.S.C. § 1155.  The disability must be viewed in relation to its history.  38 C.F.R. § 4.1.  If two disability ratings are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Reasonable doubt as to the degree of disability will be resolved in favor of the claimant.  38 C.F.R. § 4.3.
The Veteran’s degenerative arthritis of the spine, post status of lumbar discectomy and fusion is rated under 38 C.F.R. § 4.71a, DC 5242, which is rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula).  38 C.F.R. § 4.71a.  Under this formula, and as relevant here, a 50 percent rating is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine.  A 100 rating is warranted where there is unfavorable ankylosis of the entire spine.  Associated neurological disorders are rated separately.
Unfavorable ankylosis is defined by VA regulation as a condition in which the spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure on the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 5. Fixation in the neutral position of zero degrees always represents favorable ankylosis. See Id.
The rating schedule also includes criteria for evaluating intervertebral disc syndrome (IVDS). Under DC 5243, IVDS is to be evaluated either under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on the Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined.  38 C.F.R. § 4.71a, DC 5243. Under the IVDS formula, a 60 percent is warranted for incapacitating episodes with a total duration of at least 6 weeks during the past 12 months.  38 C.F.R. § 4.71a, DC 5243.  For these purposes, an incapacitating episode 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.  38 C.F.R. § 4.71a, DC 5243, Note (1).
By way of background, a June 2015 rating decision awarded service connection for degenerative arthritis, spine status post lumbar discectomy and fusion and assigned a rating of 20 percent disability, effective August 28, 2014.  Thereafter, a February 2016 rating decision increased the rating to 50 percent and assigned separate 20 percent ratings for radiculopathy of the left femoral and sciatic nerves, all effective August 28, 2014.  The current appeal period before the Board is from the effective date of service connection, or August 28, 2014.
Upon review of the totality of the record, the Board finds that the Veteran’s degenerative arthritis of the spine, post status of lumbar discectomy and fusion has been manifested by ankylosis of the entire thoracolumbar spine with no evidence of ankylosis of the entire spine at any time during the appeal period.
The Veteran was afforded two VA examinations in April 2015 and August 2018, along with his private examination in November 2014.  The Veteran asserts that due to his unfavorable ankylosis, his “…entire thoracolumbar spine is now permanently fixed, resulting in difficulty in walking with limited line of vision.”  See July 2015 VA Form 21-0958, Notice of Disagreement.  Critically, the Veteran has made no assertion that he has ankylosis of his entire spine.
A rating in excess of 50 percent is not warranted at any point during the appeal period.  The Board notes that although the Veteran presented a November 2014 private examination and underwent VA examinations in April 2015 and August 2018, the April 2015 examination is the only examination that is compliant with the requirements set forth by Correia v. McDonald, 28 Vet. App. 158 (2016) (the final sentence of 38 C.F.R. § 4.59 creates a requirement that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.”) and Sharp v. Shulkin, 29 Vet. App. 26 (2017) (the examiner should “estimate the functional loss that would occur during flares.”).  Accordingly, only the April 2015 VA examination report will be utilized for evaluation of the Veteran’s degenerative arthritis, spine post status of lumbar discectomy and fusion, as it is the only adequate examination of record.  In this regard, the Board emphasizes that the non-compliant examinations did not find ankylosis of the entire thoracolumbar spine or ankylosis of the entire spine. Thus, there is no prejudice to the Veteran in not considering these examinations to rate his disability.
The April 2015 VA examination found unfavorable ankylosis of the entire thoracolumbar spine, but not the entire spine.  The examiner performed an initial range of motion (ROM) test with findings of forward flexion of 0 to 40 degrees, extension of 0 to 20 degrees, right lateral flexion of 0 to 20 degrees, left lateral flexion of 0 to 20 degrees, right lateral rotation of 0 to 25 degrees and left lateral rotation of 0 to 30 degrees.  The examiner reported increasing pain and incoordination from the initial ROM test.  Further, the examiner noted evidence of pain with weight bearing and performed a repetitive use test with three repetitions finding a decrease in every flexion and rotation, except for forward flexion.  In addition, the examiner performed a repeated use over time examination where the Veteran reported pain and incoordination as factors of functional loss, and the Veteran’s ROM remained the same.  Although the Veteran was not examined during a flare-up, the examiner opined that the Veteran’s pain and incoordination significantly limited his functional ability, with no change in his ROM.  The examiner noted guarding with abnormal gait and reported regular use of assistive devices of a brace and walker.  Lastly, the examiner found no evidence of IVDS.
The Board notes that both the August 2018 VA examiner and the November 2014 private examiner found IVDS.  Further, the November 2014 examiner found the Veteran had incapacitating episodes that required prescribed bed rest for a total duration of at least 6 weeks in a 12-month period.  However, application of the Formula for Rating Intervertebral Disc Syndrome Based on the Incapacitating Episodes and assignment of a 60 percent rating does not avail the Veteran, as he is receiving a higher combined rating of 70 percent disability under the General Rating Formula with his separate neurological ratings.  38 C.F.R. §§ 4.25, 4.26.
In sum, for reasons outlined above, the preponderance of the evidence is against the award of an initial rating in excess of 50 percent for the Veteran’s service-connected degenerative arthritis of the spine, post status of lumbar discectomy and fusion.

 
S. BUSH
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Victoria L. Stephens, Associate Counsel