Citation Nr: 18157504 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 16-48 867 DATE: December 13, 2018 ORDER Entitlement to a disability rating in excess of 40 percent for service-connected degenerative arthritis of the lumbar spine is denied. FINDING OF FACT At no time during the appeal period is the Veteran’s degenerative changes of the lumbar spine shown to have been manifested by symptoms consistent with unfavorable ankylosis of the entire thoracolumbar spine. CONCLUSION OF LAW The criteria for entitlement to an increased rating in excess of 40 percent for degenerative arthritis of the lumbar spine have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1979 through January 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision issued by the Department of Veterans Affairs (VA) regional office (RO) in Manchester, New Hampshire. Entitlement to a disability rating in excess of 40 percent for service-connected degenerative arthritis of the lumbar spine 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. VA must assess the level of disability and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a “staged rating.” See Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim for an increased rating was filed until VA makes a final decision on the claim. Id. The Veteran’s service-connected degenerative arthritis of the lumbar spine is currently rated 40 percent disabling under Diagnostic Code 5242 for degenerative arthritis of the spine. The Veteran contends that his low back symptomatology is worse than the currently assigned disability rating. Disabilities of the spine, including those rated under Diagnostic Code 5242, 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 40 percent rating 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. The Veteran underwent a VA examination in July 2014. Range of motion testing showed forward flexion ending at 30 degrees, extension ending at 20 degrees, right lateral flexion ending at 20 degrees, left lateral flexion ending at 25 degrees right lateral rotation ending at 20 degrees, and left lateral rotation ending at 25 degrees. He was also able to perform repetitive-use testing with reduced range of motion. There is no evidence of ankylosis of the thoracolumbar or ankylosis of the entire spine. Post-service medical records obtained from VA treatment providers do not indicate the Veteran suffered unfavorable ankylosis of the thoracolumbar spine at any point prior to or during the period of appeal. Additionally, there is no evidence the Veteran’s limited range of motion or painful flare-ups produce ankylosis-like symptoms. The Board has considered the Veteran’s contentions that his low back symptomatology is worsening and acknowledges that the most recent VA examination to assess the severity of his low back disability is over 4 years old. However, the duty to provide a contemporaneous medical examination is only triggered when the evidence indicates that there has been a material change in a disability or that the current rating may be incorrect. 38 C.F.R. § 3.327(a); Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007)(citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1995)); but see Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (“[W]here the appellant complained of increased hearing loss two years after his last audiology examination, VA should have scheduled the Veteran for another examination.”). Such is not supported by the evidence of record. Indeed, a physical therapy evaluation dated as recently as February 2018 notes that the Veteran walks a lot during his job and that the range of motion of his trunk was at 70 percent (or 63 degrees) of flexion at worst. While it was indicated that he had reduced range of motion of his back, there is no evidence that the Veteran’s low back disability is manifested by ankylosis sufficient for the next-higher rating under the General Rating Formula. The Board has also considered the Veteran’s statements that his back disability warrants a higher rating and acknowledges that the Veteran is competent to report symptoms of back pain. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability according to the applicable diagnostic code. 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 accords the objective medical findings greater weight than subjective complaints of increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). The provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 are not for consideration where the Veteran is in receipt of the maximum rating based on limitation of motion. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). The only avenue for assigning a higher rating is unfavorable ankylosis of the entire thoracolumbar spine or ankylosis of the entire spine, which are not shown. The Board finds that an evaluation in excess of 40 percent is not warranted. In reaching this determination, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, because the preponderance of the evidence is against the claim, this doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Lindsey M. Connor Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Mahmoudi, Associate Counsel