Citation Nr: 18154983 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-56 532 DATE: December 4, 2018 ORDER Increased rating to 40 percent (but no higher) for lumbar spine degenerative changes L4-5 and L5-S1 with spondylosis is granted. FINDING OF FACT During the course of this appeal, the Veteran has exhibited symptoms warranting a 40 percent rating for his service connected degenerative arthritis of the lumbar spine. CONCLUSION OF LAW An increased rating of 40 percent for the Veteran’s lumbar spine degenerative changes L4-5 and L5-S1 with spondylosis is warranted for the entire appellate period. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from October 1991 to January 1995. This matter is before the Board of Veterans Appeals (Board) on appeal from an October 2014 rating decision by Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 1. Increased rating for lumbar spine degenerative changes L4-5 and L5-S1 with spondylosis Legal Criteria Disability ratings are based on average impairment in earning capacity resulting from each disability, and are determined by comparing symptoms shown with criteria in VA’s Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. When there is a question as to which of two ratings to apply, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 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. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has reviewed all evidence in the claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claims. The Veteran is requesting an increased rating for a lumbar spine disability, currently rated as 20 percent disabling under General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71, DC 5242. Under the General Formula, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, 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 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires unfavorable ankylosis of the entire spine. Unfavorable ankylosis for VA compensation purposes means that the entire cervical spine or the entire spine is fixed in flexion or extension. See id. Note (5). To determine the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are considered. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain during flare-ups and after repetitive use over time. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain with movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. VA regulations and governing case law anticipate that examiners will describe additional functional loss due to flare ups, including estimates of additional loss of range of motion in degrees where appropriate, and that the Board shall ensure that examiners have evaluated all procurable and assembled information before determining that such estimates cannot be made. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Factual Background & Analysis During the October 2014 VA examination, pain and habitus limited the Veteran’s forward flexion of the thoracolumbar spine to 80 degrees. The Veteran’s thoracolumbar spine also exhibited 20 degrees of extension, 30 degrees of bilateral lateral flexion and 30 degrees of bilateral lateral rotation with pain during extension noted on examination. The Veteran did not exhibit muscle spasms, abnormal gait, abnormal spine contour, muscle atrophy, intervertebral disc syndrome (IVDS), ankylosis, radiculopathy, or any other neurologic abnormalities. During the December 2016 VA examination, pain and habitus again limited the Veteran’s forward flexion of the thoracolumbar spine to 80 degrees. The Veteran’s thoracolumbar spine also exhibited 15 degrees of extension, 20 degrees of bilateral lateral flexion and 25 degrees of bilateral lateral rotation with pain noted on examination. The Veteran did not exhibit muscle spasms, abnormal gait, abnormal spine contour, muscle atrophy, IVDS, ankylosis, radiculopathy, or any other neurologic abnormalities. The Veteran has also submitted numerous correspondences describing the functional impairments caused by his lumbar spine disability. In a January 2017 letter, the Veteran described having to take time off work to see a pain management doctor to receive injections to deal with the pain caused by his disability. He contended that the 80 degrees of forward flexion measurement in the 2016 examination did not accurately represent his current disability. The Veteran also described three incidents while working as an elementary school teacher where flare-ups caused momentary incapacitating pain. The Veteran noted that he can no longer play with his students due to the pain caused by his disability. An October 2016 correspondence from the Veteran’s wife also describes in detail the functional impairments caused by the Veteran’s disability. The Veteran can no longer play with his children, go on bike rides, take long walks and go on hiking trips due to the possibility of pain associated with these events. She also describes that the Veteran becomes “almost incapacitated” with pain when performing perfunctory household tasks like reaching for a cup on the table or a plate from the shelf. Accordingly, the Veteran’s spine disability affects working, standing, walking, lifting, and squatting. He has reported significant additional symptoms such as pain and fatigue during flare-ups. Accordingly, under the provisions of DeLuca and Mitchell, the evidence suggests that the Veteran's limitation of motion is tantamount to forward flexion of the thoracolumbar spine 30 degrees or less. Therefore, he is entitled to an increased rating of 40 percent, but no higher. See Mitchell, 25 Vet. App. 32; Deluca, 8 Vet. App. at 207-07. For the Veteran’s disability to be rated at the next highest criteria of 50 percent disabling, his disability must exhibit unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71, DC 5242. Both VA treatment records and examinations as well as private treatment records are absent any evidence of unfavorable ankylosis. Alternatively, but not additionally, the Veteran may be assigned a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, DC 5243 (2018). Under this diagnostic code, a 60 percent rating is warranted if the total duration of incapacitating episodes is at least six weeks. See 38 C.F.R. § 4.71a, DC 5243. See also 38 C.F.R. § 4.71a, Note (1) (defining an incapacitating episode as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician). Both VA treatment records and examinations as well as private treatment records are absent any evidence of IVDS or incapacitating episodes that have required prescribed bedrest by a physician. Accordingly, a higher rating under DC 5243 is not warranted. The Board has also considered whether separate ratings are warranted for neurologic abnormalities. However, as noted above, the Veteran does not have radiculopathy or any other neurologic abnormalities. Therefore, no separate and/or additional ratings are assignable for associated neurologic abnormalities during this appeal. Therefore, the Board concludes that a 40 percent rating, but no higher, is warranted. In making this determination, the Board notes that neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Moreover, as the Veteran has not contended, nor does the evidence show that this disability renders him unemployable, the issue of entitlement to a total disability rating based on individual unemployability has not been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). L. BARSTOW Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. McKone, Law Clerk