Citation Nr: 18158904 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 11-18 281 DATE: December 18, 2018 ORDER A rating in excess of 20 percent for lumbosacral strain with residual post-surgical changes of posterior decompression at L3-4 through L5-S1 with disc herniation (lumbosacral spine disability) is denied. A rating in excess of 10 percent for cervical spine strain with degenerative disc disease and herniated nucleus pulposus (cervical spine disability) prior to February 13, 2009, is denied. A rating in excess of 20 percent for cervical spine strain with degenerative disc disease and herniated nucleus pulposus on or after February 13, 2009, is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s service-connected lumbosacral spine disability has been manifested by forward flexion to 60 degrees, without incapacitating episodes of intervertebral disc syndrome (IVDS) requiring bed rest prescribed by a physician and treatment by a physician, and no objective evidence of neurologic abnormalities other than the Veteran’s service-connected bilateral lower extremity neuropathy. 2. Prior to February 13, 2009, the Veteran’s service-connected cervical spine disability has been manifested by forward flexion to 40 degrees, a combined range of motion of 200 degrees, without evidence of cervical muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour; incapacitating episodes of IVDS have not been shown. requiring bed rest prescribed by a physician and treatment by a physician, and no objective evidence of neurologic abnormalities other than the Veteran’s service-connected left upper extremity radiculopathy. 3. Beginning February 13, 2009, the Veteran’s service-connected cervical disability has been manifested by, at worst, forward flexion to 30 degrees, without evidence of incapacitating episodes of IVDS requiring bed rest prescribed by a physician and treatment by a physician, and no objective evidence of neurologic abnormalities other than the Veteran’s service-connected left upper extremity radiculopathy. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for lumbosacral strain with residual post-surgical changes of posterior decompression at L3-4 through L5-S1 with disc herniation have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5237, 5243 (2018). 2. Prior to February 13, 2009, the criteria for a rating in excess of 10 percent for cervical spine strain with degenerative disc disease and herniated nucleus pulposus have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5237, 5242, 5243 (2018). 3. Beginning February 13, 2009, the criteria for a rating in excess of 20 percent for a cervical spine strain with degenerative disc disease and herniated nucleus pulposus have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5237, 5242, 5243 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1975 to May 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in July 2017, at which time it was remanded for further development. The requested development was completed, and the case has been returned to the Board for further appellate action. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2018). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10 (2017); see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2017); see also 38 C.F.R. §§ 4.45, 4.59 (2017). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), a 10 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 60 degrees, but not greater than 85 degrees; or where forward flexion of the cervical spine is greater than 30 degrees, but not greater than 40 degrees; or where the combined range of motion of the thoracolumbar spine is greater than 120 degrees, but not greater than 235 degrees; or where the combined range of motion of the cervical spine is greater than 170 degrees, but not greater than 335 degrees; or where there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or where there is vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, General Rating Formula. A 20 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; or where forward flexion of the cervical spine is greater than 15 degrees, but not greater than 30 degrees; or where the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or where the combined range of motion of the cervical spine is not greater than 170 degrees; or where muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 30 percent rating is warranted where forward flexion of the cervical spine is 15 degrees or less; or where there is favorable ankylosis of the entire cervical spine. Id. A 40 percent rating is warranted where there is unfavorable ankylosis of the entire cervical spine; or where forward flexion of the thoracolumbar spine is limited to 30 degrees or less; or where there is favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. 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; gastro-intestinal 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. Id. at Note (5). The General Rating Formula provides further guidance in rating diseases or injuries of the spine. In pertinent part, Note (1) provides that any associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Id. at Note (1). Alternatively, IVDS can be rated based on incapacitating episodes under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula) or the General Rating Formula, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Id. at Note (6). Pursuant to the IVDS Formula, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week, but less than two weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past 12 months. Id. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the past 12 months. Id. A maximum 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. Id. An “incapacitating episode” is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, IVDS Formula, Note (1). The Board notes the Veteran is separately rated for peripheral neuropathy of the lower extremities and radiculopathy of the left upper extremity related to his lumbosacral and cervical spine disabilities, respectively. Thus, symptoms associated with these disabilities cannot be considered in assigning an evaluation for the orthopedic manifestations of the spine disabilities. See 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided). 1. Lumbosacral Spine Throughout the period on appeal, the Veteran’s service-connected lumbosacral strain with residual post-surgical changes of posterior decompression at L3-4 through L5-S1 with disc herniation has been assigned a 20 percent rating, with temporary 100 percent ratings assigned for convalescence from January 4, 2008, through March 31, 2008; from June 13, 2008, through July 31, 2008; and from December 8, 2008, through May 31, 2009. See 38 C.F.R. § 4.30 (2008). As 100 percent rating is the maximum rating assignable, the rating during the periods of convalescence is not before the period. Upon review of the record, the Board finds that a rating in excess of 20 percent is not warranted at any point prior during the period under review. The Board has reviewed and considered the Veteran’s assertions in support of his claim, including his reports of severe low back pain, which limit his ability to stand, walk, lift, bend, and twist. However, the objective medical evidence of record is of greater probative value as to the Veteran’s level of impairment than his assertions. Even considering his subjective complaints of pain and other symptoms described in DeLuca, forward flexion of the thoracolumbar spine limited to 30 degrees or less has not been shown at any time during which the Veteran was not already in receipt of a 100 percent rating for convalescence such that a higher rating would be warranted. See Thompson v. McDonald, 815 F.3d 781, 786 (Fed. Cir. 2016) (holding that provision describing functional loss due to disability of the musculoskeletal system does not supersede requirements for a higher rating specified in the Rating Schedule). Range of motion testing performed during VA examinations conducted in June 2008, May 2009, and September 2017 revealed forward flexion to 60 degrees, with no additional limitation after repetition. Although pain was noted on examination, it did not result in additional limitation of motion. The Board acknowledges that forward flexion of the thoracolumbar spine was limited to 30 degrees during a February 2009 VA examination. However, the Veteran was in receipt of a 100 percent rating for convalescence at the time, and forward flexion was to 60 degrees both before and after that examination. The Board has also considered the Veteran’s contention that his flexion would be more limited if he did not take his pain medication. However, the examiner who evaluated the Veteran in September 2017 indicated that the Veteran reported taking Advil as needed for pain, which could relieve pain and therefore can lead to an increase in function. The examiner noted that all medical records available have been reviewed but do not contain any documented progress notes during flare ups after 2008. He concluded that it was not possible to determine change in range of motion without the over the counter medication, Advil, without resorting to mere speculation. Accordingly, a rating in excess of 20 percent is not warranted at any point during the period under review. Additionally, the Board finds that a higher rating is not warranted under the IVDS formula. In order for a higher rating to be warranted under the IVDS formula, the evidence of record must demonstrate incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the past 12 months. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. However, the evidence of record does not show any incapacitating episodes requiring prescribed bedrest and treatment by a physician at any point other than a period during which the Veteran was in receipt of a 100 percent rating for convalescence. Accordingly, a higher rating is not warranted under the IVDS formula. See 38 C.F.R. § 4.71a, IVDS Formula, Note (1). The Board has also considered whether a separate rating is warranted for any associated neurological disorder. However, separate ratings have already been assigned for bilateral lower extremity neuropathy, and the record does not show any other neurological abnormalities associated with the Veteran’s thoracolumbar spine. Accordingly, the Board finds that a separate rating for an associated neurological disability is not warranted. 2. Cervical spine The Veteran’s service-connected cervical spine strain with degenerative disc disease and herniated nucleus pulposus has been assigned a 10 percent rating prior to February 13, 2009, and a 20 percent rating thereafter. Upon review of the record, the Board finds that a rating in excess of 10 percent is not warranted at any point prior to February 13, 2009. The Board has reviewed and considered the Veteran’s assertions in support of his claim, including his reports of neck pain. However, the objective medical evidence of record is of greater probative value as to the Veteran’s level of impairment than his assertions. Even considering the Veteran’s subjective complaints of pain and other symptoms described in DeLuca, the record does not show forward flexion of the cervical spine greater than 15 degrees, but not greater than 30 degrees; or a combined range of motion of the cervical spine not greater than 170 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such that a higher rating would be warranted. See Thompson, 815 F.3d at 786. Range of motion testing performed during a June 2008 VA examination revealed forward flexion to 40 degrees, extension to 40 degrees, right lateral flexion to 15 degrees, left lateral flexion to 25 degrees, and left and right lateral rotation to 40 degrees, with no additional limitation upon repetition. The combined range of motion was 200 degrees. Although pain was noted on examination, it did not result in additional limitation of motion. There was no evidence of cervical muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour. Accordingly, a rating in excess of 10 percent is not warranted at any point prior to February 13. 2009. Upon review of the record, the Board finds that a rating in excess of 20 percent is not warranted at any point on or after February 13, 2009. Even considering the Veteran’s subjective complaints of pain and other symptoms described in DeLuca, forward flexion of the cervical spine to 15 degrees or less or favorable ankylosis of the entire cervical spine has not been shown such that a higher rating would be warranted. See Thompson, 815 F.3d at 786. Range of motion testing performed during VA examinations revealed forward flexion of the cervical spine to 30 degrees in February 2009, 40 degrees in May 2009, and 45 degrees in September 2017, with no additional limitation upon repetition. Although pain was noted on examination, it did not result in additional limitation of motion. Accordingly, a rating in excess of 20 percent is not warranted at any point on or after February 13, 2009. The Board has also considered the Veteran’s contention that his flexion would be more limited if he did not take his pain medication. However, the examiner who evaluated the Veteran in September 2017 indicated that the Veteran reported taking Advil as needed for pain, which could relieve pain and therefore can lead to an increase in function. The examiner noted that all medical records available have been reviewed but do not contain any documented progress notes during flare ups after 2008. He concluded that it was not possible to determine change in range of motion without the over the counter medication, Advil, without resorting to mere speculation. Additionally, the evidence of record does not demonstrate IVDS resulting in incapacitating episodes. Accordingly, a higher rating is not warranted under the IVDS formula at any point. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Board has also considered whether a separate rating is warranted for any other associated neurological disorder. A separate rating has already been assigned for left upper extremity radiculopathy, and the evidence of record does not show any other neurological deficits associated with the Veteran’s service-connected neck disability. Indeed, a sensory and motor function of the right upper extremity were normal during a February 2009 VA examination, and the September 2017 VA examiner indicated that the Veteran did not have any signs or symptoms of right upper extremity radiculopathy. Accordingly, the Board finds that a separate rating for a neurological disability is not warranted. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against assigning ratings in excess of that already assigned, the doctrine is not for application. See Gilbert, 1 Vet. App. at 56. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Banister, Counsel