Citation Nr: 18154506 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 16-52 277 DATE: December 4, 2018 ORDER Entitlement to an increased disability rating in excess of 40 percent for degenerative disc disease of the lumbar spine at L4-L5 and L5-S1 is denied. FINDING OF FACT For the entire period on appeal, the Veteran’s degenerative disc disease of the lumbar spine at L4-L5 and L5-S1 has not resulted in the unfavorable ankylosis of the entire thoracolumbar spine. CONCLUSION OF LAW The criteria for an increased disability rating in excess of 40 percent for degenerative disc disease of the lumbar spine at L4-L5 and L5-S1 have not been met for the entire 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 Code (DC) 5243 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1967 to October 1971. The Board acknowledges that the Veteran submitted a Rapid Appeals Modernization Program (RAMP) opt-in election form that was received by VA on August 20, 2018. However, the appeal for the Veteran’s increased rating claim regarding his lumbar spine has already been activated at the Board and is therefore no longer eligible for the RAMP program at this time. Accordingly, the Board will undertake appellate review of the case. To the extent that the Veteran has asserted that the VA examiners failed to interpret his medical records correctly, and that the evidence of record warrants a higher disability rating, the Board finds that the VA examinations of record are adequate to rate the Veteran’s service-connected lumbar spine disability for the entire period on appeal. The examiners properly considered the Veteran’s lay history, medical records, and made findings which permit application of the rating criteria. Moreover, to the extent that the June 2018 appellant’s brief asserts that the most recent November 2015 VA examination is too old for adequate evaluation of the Veteran’s current symptomatology, the Board finds that remand is not warranted on this basis, as the probative evidence of record does not document worsening of the Veteran’s service-connected lumbar spine disability since the most recent examination. VA’s duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. Finally, while additional evidence has been added to the claims file since the September 2016 statement of the case (SOC) was issued, the Board finds that remand is not required, as such evidence is primarily relevant to the Veteran’s cervical spine and right knee claims, which have been withdrawn pursuant to his RAMP opt-in election discussed above. Moreover, remand for consideration of such evidence in the context of the Veteran’s lumbar spine claim would only serve to unduly delay adjudication of his appeal. 1. Entitlement to an increased disability rating in excess of 40 percent for degenerative disc disease of the lumbar spine at L4-L5 and L5-S1. 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 increased rating claim on appeal, the Board has considered the claim for the relevant temporal period, including one year prior to his February 2014 claim, as well as whether any additional staged rating periods are warranted. The Veteran’s service-connected degenerative disc disease of the lumbar spine at L4-L5 and L5-S1 is currently rated as 40 percent disabling under Diagnostic Code (DC) 5243 of 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 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 maximum schedular 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. Intervertebral disc syndrome (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 although there is probative evidence that the Veteran has IVDS, the probative evidence of record does not document that his IVDS has resulted in any incapacitating episodes and bed rest prescribed by a physician for any period on appeal. Additionally, 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, as discussed further herein, the preponderance of the evidence is against a finding that the Veteran has any associated objective neurologic abnormalities or findings related to his service-connected lumbar spine disability. To the extent that private treatment records from July 2018 document an assessment of chronic left-sided low back pain with bilateral sciatica, the Board find such evidence of no probative value, as it is inconsistent with the additional private and VA treatment records within the claims file, including the two VA examination reports discussed herein, which do not document any neurological impairment related to the Veteran’s lumbar spine disability. Rather, VA treatment records from September 2018 submitted in support of the Veteran’s cervical spine claim document an assessment of cervical spine degenerative disc disease with likely left, and possible bilateral, C6 radiculopathy. Following a review of the evidence of record, including as discussed below, the Board finds that the preponderance of evidence weighs against the Veteran’s claim of entitlement to an initial disability rating for lumbosacral strain in excess of 10 percent from August 26, 2011, in excess of 20 percent from March 14, 2013, and in excess of 40 percent from June 6, 2016. Significantly, the probative evidence of record does not document that the Veteran’s service-connected lumbosacral strain resulted in unfavorable ankylosis of the entire thoracolumbar spine for any period on appeal. Upon VA examination in April 2014, the Veteran reported ongoing low back pain which was treated with muscle relaxers and anti-inflammatories. He denied flare ups but also stated that he had to restrict his physical activity due to daily increases of pain lasting approximately one hour during which time he was unable to move effectively and had to rest. Upon physical examination, initial range of motion findings included forward flexion to 40 degrees, extension to 10 degrees, right lateral flexion to 15 degrees, left lateral flexion to 20 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 20 degrees, each with noted objective pain at the endpoints. There was no additional loss of range of motion upon repetition, though the examiner noted functional loss/impairment including less movement than normal and pain on movement. The examiner concluded that it was not possible to determine whether pain, weakness, fatigability, or incoordination significantly limited range of motion and/or functional ability either during flare-ups or when the joint was used repeatedly over a period of time without resorting to mere speculation, because there was no conceptual or empirical basis for making such a determination without directly observing function under such conditions. The Veteran’s muscle strength, reflex, and sensory examinations were all normal, without any atrophy, ankylosis, or signs/symptoms of radiculopathy or other neurologic abnormalities. The examiner noted the presence of IVDS, but stated that the condition was currently asymptomatic, with no incapacitating episodes over the past 12 months. The Veteran reported constant use of a cane for ambulation due to his back and bilateral knee pain. Finally, the examiner found that there was functional impact upon the Veteran’s ability to work, including the following restrictions: lifting 15 pounds, walking 200 yards, walking 4 hours during an 8-hour day, sitting/standing for 15-30 minutes at one time, sitting/standing for 6 hours of an 8-hour day. Most recently, upon VA examination in November 2015, the Veteran described symptoms of constant back pain with intermittent radiating pain down to the ankles which he treated with prescription Lyrica. He denied any flare ups but reported functional loss/impairment including the inability to lift and difficulty standing and walking. Following physical examination, there was flexion to 30 degrees. The examiner specifically found that the Veteran did not have ankylosis of the lumbar spine. Muscle strength, reflex, and sensory examinations were again normal, without any signs or symptoms of radiculopathy or other neurologic abnormalities. The examiner noted there was no IVDS and no incapacitating episodes requiring bed rest prescribed by a physician. The Veteran continued to report the constant use of a cane due to his knees and back. The examiner concluded there was functional impact on the Veteran’s ability to work in that he was unable to lift any significant weight due to back pain. The examiner also noted that the Veteran had difficulty with prolonged standing and walking, but this was also impacted by his bilateral knee arthritis, and the examiner could not give a percentage of impairment due to his back pain or his knee arthritis pain. VA treatment records document the Veteran’s ongoing reports of back pain due to his degenerative disc disease of the lumbar spine; however, they do not document objective range of motion findings which would warrant an increased disability rating in excess of 40 percent for any period on appeal. Notably, neither VA treatment records nor private treatment records document that the Veteran’s service-connected lumbar spine disability has resulted in unfavorable ankylosis of the entire thoracolumbar spine for any period on appeal. In fact, private treatment records from October 2018 submitted in support of the Veteran’s cervical spine claim document that his lumbar spine range of motion was normal in both flexion and extension. 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 currently assigned 40 percent disability rating, the Board affords more probative value to the objective evidence of record, including as discussed above, which does not weigh in favor of the Veteran’s claim for any period on appeal. Additionally, to the extent that the Veteran asserts lower extremity neurologic symptoms associated with his lumbar spine disability, the Board affords more probative weight to the clinical findings made in the VA examination reports discussed above, which show that the examiners specifically found that the Veteran did not have radiculopathy or other associated neurologic abnormalities associated with his lumbar spine disability. In conclusion, the Board has considered all potentially applicable provisions of the rating schedule; however, as the preponderance of evidence weighs against the Veteran’s claim, there is no reasonable doubt to be resolved, and the claim is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Chad Johnson, Counsel