Citation Nr: 18157706 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 10-27 535A DATE: December 13, 2018 ORDER Entitlement to a rating in excess of 20 percent for lumbar degenerative disc disease with spondylosis from August 12, 2015 is denied. FINDING OF FACT From August 12, 2015, the Veteran’s lumbar spine disability has been manifested by decreased range of motion and pain, but there has been no evidence of forward flexion limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. At no time has the service-connected lumbar spine disability been manifested by incapacitating episodes having a total duration of at least 4 weeks in any 12-month period. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for lumbar degenerative disc disease with spondylosis from August 12, 2015 have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from February 1966 to February 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which, in relevant part, denied entitlement to a rating in excess of 10 percent for the Veteran’s service-connected lumbar spine disability. Before the appeal was certified to the Board, in a March 2015 rating decision, the RO increased the disability rating for the Veteran’s low back disability to 20 percent disabling, effective February 7, 2015. This matter was before the Board in February 2016 at which time it was remanded for additional evidentiary development. Thereafter, in a May 2017 decision, the Board denied the Veteran’s claims for a rating in excess of 10 percent for the service-connected lumbar spine disability prior to February 7, 2015, and a rating in excess of 20 percent from February 7, 2015 to August 11, 2015. The issue of entitlement to a rating in excess of 20 percent for the Veteran’s service-connected lumbar spine disability from August 12, 2015 was remanded. That issue was again remanded again in January 2018 for additional evidentiary and procedural development. 1. Entitlement to a rating in excess of 20 percent for lumbar degenerative disc disease with spondylosis from August 12, 2015 Disability evaluations are determined by comparing a Veteran’s symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran’s entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board, however, must evaluate the medical evidence of record during the entire period of the claim and consider the appropriateness of a “staged rating” (i.e., assignment of different rating for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Veteran’s lumbar spine disability has been rated under Diagnostic Code 5237 for lumbar strain. VA’s Rating Schedule evaluates disabilities of the spine pursuant to a General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242 (2017). That formula provides that 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, the following ratings are assigned: A 20 percent rating is assigned 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 assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Several notes to the General Rating Formula for Diseases and Injuries of the Spine provide additional guidance. Under Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Under Note (2): For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Under Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire 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 of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242 (2017). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. 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, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.59 (2017). Pain without accompanying functional limitation cannot serve as the basis for a higher rating. Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). It is, however, VA’s policy to grant at least the minimal compensable rating for actually painful motion. 38 C.F.R. § 4.59. In addition to the General Rating Formula for Diseases and Injuries of the Spine, intervertebral disc syndrome may be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that when intervertebral disc syndrome is productive of incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent rating is assigned. When intervertebral disc syndrome is productive of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months, a 40 percent rating is assigned. When incapacitating episodes have a total duration of at least six weeks during the past 12 months, a maximum 60 percent rating is assigned. Note (1) following 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017) provides that 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. Factual Background Turning to the evidence, private clinical records dated in August 2015 show that the Veteran underwent a L4-L5 and L5-S1 laminectomy, medial facetectomy, foraminotomy as well as insertion of a Coflex interlaminar stabilization device. In an August 2015 post-surgery clinical record, it was documented that the Veteran’s symptoms responded favorably to the operation. The surgeon indicated that the Veteran no longer needed to be seen for follow-up unless the symptoms returned. Following surgery, the Veteran received 19 sessions of physical therapy. The Veteran was provided a VA examination in May 2016. At that time, he reported constant back pain that, at times, radiated to the bilateral buttocks and hips. There was no radiating pain in the bilateral lower extremities. The appellant’s pain was aggravated by walking more than one block. He denied tingling, numbness, or weakness in the bilateral lower extremities. The Veteran’s bowel and bladder functions were intact. Flare-ups were denied and the appellant did not report having any functional loss or functional impairment of the thoracolumbar spine. On range of motion testing, the Veteran had forward flexion to 45 degrees; extension to 15 degrees; right lateral flexion to 15 degrees; left lateral flexion to 20 degrees; and right and left lateral rotation to 20 degrees. Pain was noted on examination but did not result in or cause functional loss. There was no evidence of pain with weight bearing or objective evidence of localized tenderness or pain on palpitation of the joints or associated soft tissue of the thoracolumbar spine. There was no additional loss of function or range of motion after repetitive use testing. Additionally, pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over a period of time. There was no guarding or muscle spasm of the thoracolumbar spine. Muscle strength testing and reflex examination were normal. Sensory examination showed decreased sensation to light touch in the left foot/toes. Straight leg raising test was negative. Radiculopathy testing showed mild radiculopathy in the left lower extremity. There was no ankylosis of the spine or intervertebral disc syndrome. A surgical scar of on the lumbar spine noted. A final VA examination was provided in March 2018. It was noted that the Veteran had low back pain aggravated by walking. His left side radiating pain had resolved. The Veteran denied flare-ups or having any functional loss or functional impairment of the thoracolumbar spine. On range of motion testing, the Veteran had forward flexion to 40 degrees; extension to 25 degrees; right and left lateral flexion to 20 degrees; and right and left lateral rotation to 25 degrees. Pain was noted examination but it did not result in or cause functional loss. There was no evidence of pain with weight bearing or objective evidence of localized tenderness or pain on palpitation of the joints or associated soft tissue of the thoracolumbar spine. There was no additional loss of function or range of motion after repetitive use testing. Additionally, pain weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over a period of time. There was no guarding or muscle spasm of the thoracolumbar spine. Muscle strength testing, reflex examination, and sensory examination were normal. There was no finding of muscle atrophy. Straight leg raising test was negative. There was no finding of radiculopathy or ankylosis of the spine. Intervertebral disc syndrome of the lumbar spine was noted; however, the Veteran had not had any episodes of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. A surgical scar of on the lumbar spine noted. Analysis Applying the facts in this case to the legal criteria set forth above, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 20 percent for the Veteran’s lumbar spine disability from August 12, 2015. As set forth above, from August 12, 2015, the Veteran’s lumbar spine disability has been manifested by complaints of pain and limitation of motion. However, the evidence does not establish that forward flexion of the lumbar spine was limited to 30 degrees or that there was ankylosis of the entire thoracolumbar spine. Notably, at the time of the May 2016 VA examination, the Veteran’s lumbar spine was manifested by forward flexion to 45 degrees. During the March 2018 VA examination, the Veteran had forward flexion to 40 degrees. Further, there is no indication that the Veteran’s disability was manifested by ankylosis or fixation of the spine, either favorable or unfavorable. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5) (defining ankylosis as fixation of the entire thoracolumbar spine); see also Lewis v. Derwinski, 3 Vet. App. 259 (1992) (ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, surgical procedure”). The Board observes that no medical professional has characterized the Veteran’s disability as manifested by symptoms approximating forward flexion limited to 30 degrees or ankylosis of the entire thoracolumbar spine. Further, neither the Veteran nor his representative has pointed to any evidence which would support the next-higher 40 percent. As such, a rating in excess of 20 percent based on limitation of motion is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5237. The Board has considered additional limitation of function per 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). In this regard, the record is clear that the Veteran experiences pain. Pain itself does not constitute functional loss. Rather, the pain must produce functional loss which results in disability which more nearly approximates the next higher rating in order to warrant a higher rating. After reviewing the record, the Board concludes that the objective evidence does not reflect the functional equivalent of symptoms, supported by adequate pathology, required for the assignment of a rating in excess of 20 percent based on functional loss, including due to pain. Consideration has also been given to a higher rating based on incapacitating episodes. However, the evidence contains no indication that the Veteran was prescribed bed rest by any physician for his lumbar spine disability during the period in question. As such a rating in excess of 20 percent is not warranted for incapacitating episodes. The Board has considered all potentially applicable diagnostic codes in accordance with Schafrath v. Derwinski, 1 Vet. App. 589 (1991), but the Veteran’s lumbar spine disability could not receive a higher rating under an analogous diagnostic code. See 38 C.F.R. § 4.115(b). The Board has also considered that the Rating Schedule specifically provides that neurological symptoms are to be rated separately under the appropriate diagnostic code. In this case, service connection for radiculopathy of the left lower extremity has been granted. No additional neurological abnormities were found on examination. Thus, a separate evaluation for additional neurological disability is not warranted. The Board observes that the VA examiners noted a scar associated with the Veteran’s lumbar spine disability. However, service connection for a scar was awarded in a January 2018 rating decision. The Veteran has not expressed disagreement with the assigned rating. In sum, for the foregoing reasons, the Board finds that a preponderance of the evidence is against the claim of entitlement to a rating in excess of 20 percent for the Veteran’s service-connected lumbar spine disability from August 12, 2015. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the claim must be denied. See 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Jones, Counsel