Citation Nr: 18156471 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 07-03 158A DATE: December 11, 2018 ORDER Entitlement to a rating in excess of 40 percent for residuals of L1 fracture with degenerative arthritis and degenerative disc disease (a "low back disability") is denied. FINDING OF FACT The Veteran’s service-connected low back disability is not shown to have been manifested by unfavorable ankylosis of the entire thoracolumbar spine, or by incapacitating episodes of intervertebral disc disease with a total duration of at least 6 weeks during a 12-month period; further (additional to bilateral lower extremity radiculopathy) separately ratable neurological manifestations are not shown. CONCLUSION OF LAW A rating in excess of 40 percent is not warranted for the Veteran’s low back disability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.21, 4.40, 4.45, 4.71a, Diagnostic Code (Code) 5235. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from September 1970 to November 1971. This matter is before the Board on appeal from a March 2005 rating decision. In September 2010, a Travel Board hearing was held before the undersigned; a transcript of the hearing is in the record. In February 2011, January 2013, and January 2016, the Board remanded the matter for additional development. The previous remands addressed a claim for entitlement to TDIU which had not yet been adjudicated by the agency of original jurisdiction (AOJ) in the first instance. A March 2018 rating decision has now adjudicated the matter, and the Veteran has not initiated an appeal. Therefore, the matter of entitlement to a TDIU rating is not before the Board. Entitlement to a rating in excess of 40 percent for a low back disability is denied. A June 2004 letter from Dr. Trapp of The Arthritis Center states that the Veteran was under rheumatology care by VA for treatment of ankylosing spondylitis. On July 2004 VA examination, the Veteran reported having chronic pain, including in his back; the pain was constant with occasional very severe flare-ups. He was noted to be in pain throughout the examination. He reported constipation related to use of morphine usage and some bladder complaints which he felt were related to the constipation. He reported being unable to walk unaided, and that he could walk only very short distances using a walker and the aid of his wife; he had been wheelchair bound for two years. On physical examination, flexion of the lumbar spine was very limited, with only 30 degrees flexion, limited by pain; extension was less than 10 degrees, limited due to pain; right lateral rotation was 30 degrees and left lateral flexion was 20 degrees, each limited because of pain. It was very difficult to perform a complete neurological examination because of pain and limited movement, though some weakness in the distal part of the lower extremities was noted. X-rays found no evident fracture or significant degenerative change; there was apparent fusion of the sacroiliac joints which may relate to ankylosing spondylitis. The diagnosis was lumbar spine degenerative joint disease. The examiner opined that the Veteran’s unemployability was due to ankylosing spondylitis. In a July 2004 statement, the Veteran stated that he spent most of his time in bed, a lift chair, or a wheelchair, as he was unable to walk far. He stated that his ankylosing spondylitis caused more chronic pain and deterioration in addition to his lumbar fusion. Based on this evidence, the March 2005 rating decision on appeal granted a 40 percent rating for residuals of L1 fracture with arthritis, effective May 21, 2004, the date on which the increased rating claim was received. VA outpatient treatment records dated between 2004 and 2008 show a diagnosis of ankylosing spondylitis. A January 2006 VA treatment record notes ankylosing spondylitis with significant structural disease of the vertebral column, progressive spastic paraparesis, bulbar weakness, and overlapping neuropathies likely including a distal diabetic polyneuropathy and polyradiculoneuropathy. On November 2009 VA examination, the Veteran reported that his back condition had severely worsened since the previous examination, and he now used an electric wheelchair constantly. He reported that he could take a few steps with a walker to get to the bathroom; his wife assisted him with all activities of daily living except feeding. He reported that his range of motion was “almost totally gone” in his back and pelvis and he now fell frequently when out of the chair. He reported constant sharp pain in the low back that did not radiate down the legs, with daily flare-ups, and he experienced no tingling, weakness, or numbness in his back. He reported having had approximately 70 incapacitating episodes of low back pain over the previous year, each lasting for one hour, and that he did not seek medical care during such episodes. On physical examination, forward flexion of the lumbosacral spine was from 0 to 30 degrees with pain beginning at 10 degrees, extension was from 0 to 10 degrees with pain beginning at 10 degrees, lateral bending was from 0 to 10 degrees bilaterally with pain beginning at 10 degrees, and lateral rotation was from 0 to 10 degrees to the right and from 0 to 20 degrees to the left with pain beginning at 10 degrees bilaterally. The examiner noted that during a flare-up, the effective functional range of motion was additionally limited to 0 to 10 degrees of flexion due to increased pain. The examiner noted that the Veteran’s uneven gait since 1971 due to his back condition had led to the development of accelerated arthritis in his low back beyond the normal progression of the disease, and a severe back strain may trigger premature disk degeneration; degenerative disk disease can cause stiffness and inflammation in the lumbar spinal joints and it may also cause pain, numbness or tingling down the leg, and muscles tense to protect the low back and may cause muscle spasm. On May 2011 VA examination, the Veteran reported stabbing, pulsating, constant, daily pain in the lower back radiating to both legs; he reported that he felt like he was being poked by needles with sharp and electrical shock pain down both legs. The examiner noted that there were no incapacitating episodes of spine disease. On physical examination of the thoracolumbar spine, flexion was from 0 to 30 degrees, extension was from 0 to 5 degrees, lateral flexion was from 0 to 20 degrees bilaterally, and lateral rotation was from 0 to 20 degrees bilaterally. Moderate spasm of the lumbar spine prevented repetitive motion testing, and the Veteran was unstable in the standing position and could not stand unsupported. On detailed motor exam, muscle tone was normal; there was no muscle atrophy. X-rays of the lumbar spine revealed moderate to severe degenerative disc disease at L5/S1, mild spondylosis throughout the lumbar spine, and an old compression fracture involving the T12-L1 interspace with approximately 20 percent collapse. The diagnosis was degenerative disc disease, L5/S1 and T12/L1 with old compression injuries at this level; the examiner added an incidental note that there were no signs of ankylosing spondylitis in the lumbar spine. On July 2011 VA treatment, severe ankylosing spondylitis with almost complete fusion of the spine was diagnosed. December 2011 VA treatment records note an impression of ankylosing spondylitis with “bamboo spine”. On July 2014 VA examination, the diagnoses included a history of L1 fracture with arthritis and ankylosing spondylitis. The Veteran reported lower back pain and many years of back trouble. He reported flare-ups with standing for prolonged periods or walking, occurring once per week, lasting 20 to 30 minutes, and relieved with sitting. On range of motion testing, forward flexion was to 30 degrees with objective evidence of painful motion at 30 degrees, extension was to 15 degrees with objective evidence of painful motion at 10 degrees, right and left lateral flexion were each to 20 degrees with objective evidence of painful motion at 20 degrees, and right and left lateral rotation were each to 30 degrees with no objective evidence of painful motion. Following repetitive use testing, forward flexion was to 30 degrees, extension was to 10 degrees, right and left lateral flexion were each to 20 degrees, and right and left lateral rotation were each to 30 degrees. Additional functional impairment following repetitive-use testing included less movement than normal, weakened movement, and pain on movement. The examiner opined that pain could significantly limit functional ability during the flare-ups or when the joint is used repeatedly over a period of time, with an estimated 50 percent loss secondary to pain with flexion. The examiner noted that the Veteran has arthritis and spends much of his time in an electric wheelchair. Muscle strength testing showed 4/5 strength on all testing, indicating active movement against some resistance. Reflex and sensory exams were normal. There was no radicular pain or any other signs or symptoms due to radiculopathy. There were no other neurologic abnormalities or findings related to a back condition, such as bowel or bladder problems/pathologic reflexes. The Veteran did not have intervertebral disc syndrome or any incapacitating episodes over the previous 12 months. He used a wheelchair, crutch, cane, and walker, all due to his back condition. Imaging studies showed no acute fracture or malalignment in the thoracic spine; the findings showed flowing syndesmophytes compatible with reported history of ankylosing spondylitis. In an August 2014 addendum opinion, the examiner stated that the diagnosed disability entities of the spine included L1 fracture with arthritis with date of diagnosis in the 1980s; ankylosing spondylitis diagnosed in 2014; and degenerative changes of the cervical spine diagnosed in 2014. The examiner opined that there is no history of thoracic spine trauma and, on examination, the Veteran’s pain seemed primarily in the lumbar region; the examiner opined that any ankylosing spondylitis in the thoracic area would not be caused or aggravated by the Veteran’s service-connected residuals of an L1 fracture. The examiner opined that the Veteran has findings on X-ray compatible with unfavorable ankylosis of the entire thoracolumbar spine. The examiner stated that the Veteran did not note any neurological manifestations, stating that previous conditions noted may have since resolved. The Board found the 2014 VA examination and addendum opinion inadequate and, in January 2016, remanded the for a new VA examination. On August 2016 VA examination, the diagnoses included ankylosing spondylitis diagnosed in 1990, degenerative arthritis of the spine diagnosed in 1982, intervertebral disc syndrome diagnosed in 2016, vertebral fracture with an unknown date of diagnosis, degenerative disc disease of the lumbar spine diagnosed in 2016, and radiculopathy diagnosed in 2016. The Veteran reported back pain and stiffness and used a motorized power chair. He reported leg weakness and back pain, which he treated with morphine and Lyrica. Range of motion testing could not be performed due to back pain, which was noted on rest/non-movement. There was severe pain on palpation of the lower back which the examiner stated was related to the degenerative arthritis and ankylosing spondylitis. There was evidence of pain with weight bearing. Pain and fatigue significantly limited functional ability with repeated use over a period of time, which the examiner could not describe in terms of range of motion. Pain and fatigue significantly limited functional ability with flare ups, which the examiner could not describe in terms of range of motion; pain was noted to be severe on movement. There was lower back spasm with sudden movement. Additional contributing factors of disability included less movement than normal, weakened movement, deformity, instability of station, and use of a powered chair. Muscle strength testing was 3/5 bilaterally with no muscle atrophy. Symptoms due to radiculopathy included severe constant pain to both lower extremities, moderate intermittent pain to both lower extremities, moderate paresthesias and/or dysesthesias to both lower extremities, and moderate numbness to both lower extremities; involvement of the femoral nerve and sciatic nerve bilaterally was indicated. Regarding other neurologic abnormalities, the examiner noted that left side reflexes were decreased. The examiner opined that the Veteran has intervertebral disc syndrome, with episodes of bed rest having a total duration of at least 4 weeks but less than 6 weeks during the previous 12 months, with pain noted “all the time” to the neck and back. The Veteran reported constant use of a wheelchair, regular use of crutches, and occasional use of a cane, due to ankylosing spondylitis. Thoracic spine X-rays showed syndesmophyte formation in the thoracic spine indicating ankylosing spondylitis; lumbar spine X-rays showed mild to moderate degenerative disc disease and facet arthropathy, especially in the lower lumbar spine. The examiner stated there was no ankylosis of the spine; the examiner further remarked that because range of motion was not tested, it could not be determined if the Veteran has ankylosis. The examiner opined that the Veteran has long been diagnosed with ankylosing spondylitis and degenerative arthritis, and prone to fracture due to disease of bone and spine; and due to his arthritis, ankylosing spondylitis, and progressive disease, he was a high risk of bone and vertebral fracture. The examiner opined that the L1 fracture was the result of the degenerative arthritis and ankylosing spondylitis, and it is the degenerative arthritis and ankylosing spondylitis that are the progressing conditions. The examiner opined that the fracture caused inflammation of the bone which increased the severity of the ankylosing spondylitis and degenerative arthritis and, because of this, the Veteran’s pain and stiffness have increased and he is walking less. In a September 2018 medical opinion based on review of the record, the consulting provider opined that it is at least as likely as not that the service-connected L1 fracture, which occurred during service in October 1970, caused the Veteran’s degenerative disc disease, degenerative arthritis, but not the ankylosing spondylitis of the thoracolumbar spine. The reviewing provider opined that the Veteran’s diagnosed lumbar osteoarthritis (i.e. osteophytes present at all lumbar segmental levels per August 2016 X-rays) and degenerative disc disease are secondary to his service-connected lumbar vertebral transverse process fracture. The reviewing provider opined that this is due to chronic imposition of abnormal biomechanical forces (i.e. increasing fibrotic shortening microscopically) involving traction on the ligamentous attachments of the lumbar muscles to the vertebra’s transverse (L1 fractured in this case) and spinous processes from the trauma caused and incident to the transverse process fracture. The reviewing provider opined that this causes, at the micro and finally macro level, changes i.e. dehydration and annular fiber stretching (unraveling, so to speak) of the lumbar discs, resulting in X-ray observation of “thinning” of the disc spaces as well as disc bulging, i.e. between the lumbar vertebrae as is the case with this Veteran. The reviewing provider opined that this also (abnormal chronic biomechanical traction forces) results in demonstrable lumbar arthritis. The reviewing provider stated that ankylosing spondylitis is an autoimmune disorder and its etiology is not secondary to the solely mechanical/traumatic fracture in 1970 of the transverse process fracture of L1, but rather is from an unrelated adverse immunological disorder. The consulting provider stated that his opinions rectify the incorrect information from the August 2016 examination. Based on this evidence, a September 2018 supplemental statement of the case recharacterized the Veteran’s service-connected disability as residuals of L1 fracture with degenerative arthritis and degenerative disc disease/intervertebral disc disease, and continued the 40 percent rating. Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding degree of disability is to be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Additional VA treatment records show complaints of back pain and symptoms similar to those found on the examinations described above. The Veteran has established service connection for lumbar radiculopathy of the left lower extremity involving the femoral nerve; lumbar radiculopathy of the left lower extremity involving the sciatic nerve; lumbar radiculopathy of the right lower extremity involving the femoral nerve; and lumbar radiculopathy of the right lower extremity involving the sciatic nerve, each rated 10 percent. Those disabilities are not at issue herein. When an evaluation of a disability is at least partly based on the extent to which it causes limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Code, any additional functional loss the Veteran may have by virtue of factors described in 38 C.F.R. §§ 4.40, 4.45, and 4.59. These factors include more or less than normal movement, weakened movement, premature or excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Functional loss due to pain is rated at the same level as functional loss where motion is impeded. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Under 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though motion may be possible beyond the point when pain sets in. Pettiti v. McDonald, 27 Vet. App. 415, 425 (2015). A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant, although such behavior may be reported by a layperson. Pettiti, 27 Vet. App. at 425. Moreover, where the Code is not predicated on the loss of range of motion, or the Veteran already has the highest available rating based on restriction of motion, the provisions regarding pain in 38 C.F.R. §§ 4.40 and 4.45 do not apply. Johnson v. Brown, 9 Vet. App. 7, 11 (1996); Johnston, 10 Vet. App. at 84-85. The VA Rating Schedule provides for the following ratings for spine disabilities, 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. According to the General Rating Formula for Diseases and Injuries of the Spine (General Formula), the following ratings are to be assigned: [The ratings listed below apply to Codes 5235 through 5243 (unless a disability rated under Code 5243 is alternatively rated under the “Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes”).] 1) 40 percent - Forward flexion of the thoracolumbar spine is 30 degrees or less; or, for favorable ankylosis of the entire thoracolumbar spine; 2) 50 percent - Unfavorable ankylosis of the entire thoracolumbar spine; and 3) 100 percent - Unfavorable ankylosis of the entire spine. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Id. n. 1. IVDS may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating IVDS Based on Incapacitating Episodes provides for disability ratings based on the frequency and duration of incapacitating episodes. Under that Formula, a 40 percent rating is warranted when such incapacitating episodes had a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted when such episodes had a total duration of at least 6 weeks during the past 12 months. An “incapacitating episode” is 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, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1. Under the General Formula, the next higher (50 percent) rating for thoracolumbar spine disability requires unfavorable ankylosis of the thoracolumbar spine. There is no indication of ankylosis of the Veteran’s spine, much less of the unfavorable ankylosis required for a 50 percent rating. The Board notes the July/August 2014 VA examiner’s opinion that the Veteran has findings on X-ray compatible with unfavorable ankylosis of the entire thoracolumbar spine. However, that examiner also opined that any ankylosing spondylitis in the thoracic area would not be caused or aggravated by the Veteran’s service-connected residuals of an L1 fracture. The September 2018 VA consulting-provider noted that the Veteran’s ankylosing spondylitis is an autoimmune disorder and its etiology and onset are not due to the service-connected L1 fracture but are rather due to an unrelated health issue. Additionally, the Veteran had forward flexion to 30 degrees on the July 2014 VA examination, including on repetitive use testing, which does not reflect unfavorable ankylosis of the entire thoracolumbar spine. Consequently, a 50 percent rating under the General Formula is not warranted. There is also no evidence (and he does not allege otherwise) that the Veteran has experienced incapacitating episodes due to IVDS with a total duration of at least 6 weeks during a 12-month period. Therefore, a higher rating under the Formula for Rating IVDS based on incapacitating episodes is also not warranted. As was noted above, lower extremity neurological manifestations of the low back disability are service connected and separately rated; additional compensable neurological manifestations of the service connected low back disability are not shown. Therefore, further separate ratings for neurological manifestations of the low back disability are not warranted. Symptoms and impairment due to the service-connected low back disability (not due to ankylosing spondylitis) do not include any not encompassed by schedular criteria (so as to warrant referral for consideration of an extraschedular rating). GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Schechner, Counsel