Citation Nr: 18158071 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 17-01 160 DATE: December 14, 2018 ORDER Entitlement to an initial rating in excess of 20 percent for a low back disability is denied. FINDING OF FACT The Veteran’s low back disability is manifested by forward flexion of the thoracolumbar spine greater than 30 degrees, without ankylosis, and without muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 20 percent for a low back disability are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2005 to November 2013 in the United States Coast Guard. This current appeal comes to the Board of Veterans’ Appeals (Board) from a June 10, 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin which granted service connection and assigned a 10 percent rating for a low back disability, effective from November 13, 2013. During the pendency of the appeal, the RO granted an increased 20 percent rating for the low back for the entirety of the rating period, as well as service connection for radiculopathy of the lower extremities. The neurological evaluations have not been appealed. As the veteran has no received the maximum for his low back disability or expressed satisfaction, the appeal continues. AB v. Brown, 6 Vet. App. 35 (1993). The Veteran’s December 29, 2016 substantive appeal shows that he declined an optional Board hearing. Duty to Notify and Assist Neither the Veteran nor his representative identified any shortcomings in fulfilling VA’s duty to notify and assist. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board thus finds that further action is unnecessary under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159. The Veteran will not be prejudiced because of the Board’s adjudication of the claims below. Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as “staged” ratings.” Fenderson v. West, 12 Vet. App. 119, 126 127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran’s low back condition is diagnosed as degenerative joint disease (DJD) with intervertebral disc syndrome (IVDS) and evaluated under Diagnostic Code 5242. He currently is receiving a 20 percent disability evaluation, effective from November 13, 2013. The General Rating Formula for diseases and injuries of the spine provides disability ratings, 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. It applies to Diagnostic Codes 5235 to 5243, unless the disability rated under Diagnostic Code 5243 is evaluated under the formula for rating Intervertebral Disc Syndrome (IVDS) based on incapacitating episodes. Under the General Rating Formula, a 20 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, when there is 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 evaluation is warranted when there is forward flexion of the thoracolumbar spine 30 degrees or less, or when there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Disability of the spine may be evaluated under either the General Rating Formula or under the formula for rating IVDS based on incapacitating episodes (Diagnostic Code 5243), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Diagnostic Code 5243 provides evaluations for IVDS based on the frequency of incapacitating episodes. An “incapacitating episode” for purposes of totaling the cumulative time is defined as “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, Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1. No such episodes are noted in the record, and hence these criteria are not for application. Treatment records from 2014 and 2015 reveal consistent reports of pain in the low back, with waxing and waning, and variation in the degree of functional impact. In April 2015, the Veteran said his occupation was farm equipment repair, and that the mechanical part of his job did not bother him. However, he was often aggravated while he drove during work, and that pain was worse in the morning. He described the pain as a constant, aching soreness with occasional shooting pain. The pain was said to range between a 3 and 10 out of 10. His active range of motion was measured, and it revealed that flexion was 60 degrees, extension 25, lateral flexion both directions was 25, and lateral rotation was 30. The Veteran underwent a lumbar spine evaluation in April 2014. He was diagnosed with DJD of the L4-L5, L5-S1 with moderate neural foraminal narrowing on the right and IVDS; the disability was related to an in-service injury. He began experiencing pain at 80 degrees on flexion, 20 degrees on extension, lateral flexion and rotation was pain at 20 degrees in both directions. His range of motion did not change after repetitive use. The Veteran reported flare-ups that caused pain, stiffness, and weakness, and that they prevented lifting and minimized walking, standing, and sitting. He had no localized tenderness, guarding, spasms, atrophy, or ankylosis. The Veteran suffered functional impact in lifting more than 50lbs, or 10lbs repeatedly; he also could not sit or stand for more than 60 minutes, and in an 8-hour day he could only stand 4 hours, sit 2 hours, and could lie down for 1 hour. There were no other pertinent physical findings. A private evaluation took place in May 2015. The Veteran reported trouble sitting and that he could only perform light work duties and had moderate pain on movement. His range of motion was somewhat impaired. One week later, he received a second evaluation. His pain was less, but he did still have a decreased ability to lift weights. Treatment records show that in May 2015 he reported recent flare-ups that caused a lot of pain, specifically in his right hip. He says the pain is worse in the mornings and that his right leg has been feeling weaker. He received another VA examination in December 2015. He reported flare-ups caused by increased activity that lasts for 1-2 days. His functional loss was described as difficulty in occasionally lifting 50lbs, walking is limited to one mile before resting, standing limited to 15 minutes at a time, and limited bending, twisting, pushing, and pulling. His forward flexion was 70 degrees, extension was 20, right lateral flexion 25, left lateral flexion 20, and lateral rotation was 30 degrees. Pain on movement was noted to cause functional loss. He displayed objective evidence of localized tenderness. Repetitive use testing did not reveal additional range of motion loss. The examiner found that the examination was consistent with the Veteran’s description of repeated use over time and flare-ups; repeated use and flare-ups both caused pain, fatigue, weakness, lack of endurance, and incoordination. Muscle spasms and tenderness were found to cause an abnormal gait. The Veteran did not have ankylosis or muscle atrophy. However, he did display less movement than normal, weakened movement, disturbance of locomotion, and interference with sitting and standing. His muscle strength was normal on the left, but weaker on the right. There were no other pertinent physical findings. The Board finds that the Veteran’s current disability is appropriately rated at 20 percent disabling. VA must consider granting a higher rating for functional loss due to pain, weakness, excess fatigability, or incoordination. DeLuca, 8 Vet. App. at 202. While the Veteran experiences limited range of motion, pain, and some functional loss, that functional loss is not so severe that it results in ankylosis or limits forward flexion to less than 30 degrees. Some functional loss has been noted that includes issues sitting, standing, driving, and with limited range of motion and pain. Despite this, the Veteran has not reported any additional inability to perform his job, and his symptoms do not rise to the level that warrants a higher rating. He has not suffered any ankylosis of the cervical spine or thoracolumbar spine; additionally, his thoracolumbar spine still has flexion of 70 degrees which would not even entitle him to a 20 percent evaluation without spasms and guarding causing an abnormal gait. No increased rating is warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Harner, Associate Counsel