Citation Nr: 18159092 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-58 083 DATE: December 18, 2018 ORDER Entitlement to a rating in excess of 20 percent for lumbosacral strain with multi-level degenerative disc disease with neuroforaminal stenosis and facet disease with multi-level disc bulging and intervertebral disc syndrome (lumbosacral spine disability) is denied. FINDING OF FACT Throughout the period at issue, the Veteran’s lumbosacral spine disability resulted in a thoracolumbar range of motion greater than 30 degrees but not greater than 60 degrees when considering pain weakness, fatigability, or incoordination; and there is no evidence of ankylosis of the Veteran’s thoracolumbar spine. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for the Veteran’s service-connected lumbosacral spine disability are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.59, 4.71a. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from November 1981 to May 2002. This claim comes before the Board of Veterans’ Appeals (Board) on appeal of an August 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. 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 (2017); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3 (2017). A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 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. Evaluation of a service connected disability involving the musculoskeletal system rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran’s lumbosacral spine disability is evaluated under Diagnostic Code group 5235-5243, 38 C.F.R. § 4.71a. Accordingly, the regulations provide for evaluation of the Veteran’s lumbosacral spine disability under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a. Under the General Rating Formula, a 10 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation 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 is limited to 120 degrees or less; 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. Important for this case, a 40 percent evaluation is assigned for forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Intervertebral disc syndrome (IVDS) is evaluated (preoperatively or postoperatively) either on the basis of incapacitating episodes over the past 12 months, or under the General Rating Formula (which provides the criteria for rating orthopedic disability, and authorizes separate evaluations of its chronic orthopedic and neurologic manifestations), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under Diagnostic Code 5243, 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. 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. 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. A maximum, 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. The notes following Diagnostic Code 5243 define an incapacitating episode as 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. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Entitlement to a rating in excess of 20 percent for lumbosacral spine disability. The Veteran requested a rating increase for his service-connected lumbosacral spine disability. Prior to the appeal period, the Veteran’s disability was evaluated at 20 percent under Diagnostic Code 5242. In the August 2016 Rating Decision, the RO reevaluated the Veteran’s disability at 20 percent under Diagnostic Code 5243, effective April 1, 2016, to accommodate an IVDS diagnosis from the July 2016 VA examination. The examiner diagnosed the veteran with IVDS of the thoracolumbar spine as an addition to and progression of the prior diagnosis of lumbosacral strain with multi-level degenerative disc disease with neuroforaminal stenosis and facet disease with multi-level disc bulging. At the April 2016 examination, the Veteran reported that his lumbosacral spine disability had gotten worse, with pain radiating into his hips, legs, back, and neck. He also reported that his feet fall asleep. The Veteran reported flare-ups. The Veteran reported functional impairment, including difficulty using bathroom, walking, standing, sitting, sleeping, working, driving, and bending. Upon physical examination, measurement of the range of motion of the thoracolumbar spine revealed flexion to 35 degrees; extension to 10 degrees; lateral flexion to 10 degrees, bilaterally; and lateral rotation to 10 degrees, bilaterally. Combined range of motion of the thoracolumbar spine was 85 degrees. The examiner reported that the Veteran’s range of motion was abnormal and contributed to a functional loss. The examiner stated that the Veteran had moderately increased time required to complete, as well as inability to perform frequently, certain occupational tasks such as climbing, stooping, kneeling and crouching as well as decreased standing and ambulation secondary to pain. The examiner noted pain in all range of motion tests and functional loss due to pain. There was no evidence of pain on weight bearing. The examiner also found objective evidence of pain on moderate palpation of the lumbar paraspinals consistent with the diagnosed lower back condition. The Veteran was able to perform repetitive-use testing and there was no additional loss of function or range of motion after three repetitions. The examiner found that pain (not fatigue, weakness, lack of endurance, or incoordination) significantly limits functional ability with repeated use over a period of time. The examiner did not find evidence of muscle spasms or guarding. The examiner found localized tenderness that did not result in abnormal gait or abnormal spinal contour. There was no evidence of muscle atrophy and muscle strength rated normal in all tests. Upon examination, the Veteran had normal reflexes in his knees and ankles. A sensory examination revealed normal sensation in in Upper Anterior Thigh and Thigh/Knee, bilaterally; and decreased sensitivity in the Lower Leg/Ankle and Foot/Toes, bilaterally. The straight leg testing was negative, bilaterally. The examiner found evidence of mild radiculopathy with mild intermittent pain, mild paresthesias and/or dysesthesia, and mild numbness in the Veteran’s lower extremities, bilaterally. The examiner found no evidence of ankylosis. The examiner found no evidence of neurologic abnormalities or finding related to a thoracolumbar condition, such as bowel or bladder problems. As stated above, the examiner diagnosed the Veteran with IVDS of the thoracolumbar spine. The examiner noted that the Veteran did not have any episodes of acute signs or symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The examiner noted that the Veteran does not use any assistive devices as a normal mode of locomotion. In adjudicating the Veteran’s claims, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences concerning his disabilities. See Layno v. Brown, 6 Vet. App. 465 (1994). Competent evidence concerning the nature and extent of the Veteran’s lumbosacral spine disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings directly address the criteria under which the Veteran’s lumbosacral spine disability is evaluated. As such, the Board finds the medical records and opinions to be the most probative evidence with regard to whether an increased rating is warranted. The Veteran asserts that he had over four weeks of incapacitating episodes requiring bed rest related to his lumbosacral spine disability in 2016. He submitted leave statements for January 2016 to September 2016 showing 5.8 weeks of sick and annual leave combined (13 days sick leave and 16 days annual leave). For purposes of IVDS ratings under 38 C.F.R. § 4.71a, an incapacitating episode is defined as a period of acute signs and symptom due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. While the Veteran has documented his absence from work, there is no evidence of bed rest prescribed by a physician. The Board finds a change in the rating for the Veteran’s lumbosacral spine disability is not warranted. The record supports the Veteran’s current rating of 20 percent. The next highest rating for the Veteran’s lumbosacral spine disability is 40 percent, and a 40 percent rating is assigned for forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a. This is not shown by the evidence of record. The examination revealed forward flexion greater than 30 degrees when considering pain, weakness, fatigability or incoordination; and no evidence of ankylosis in the spine. See 38 C.F.R. §§ 4.45, 4.59, 4.71. The Veteran’s treatment records are consistent with the VA examiner’s findings, including a lack of ankylosis and no evidence of prescribed bed rest. Considering the above, the Board finds that a higher rating at any point during the period of the appeal is not warranted. This does not suggest that the Veteran does not have problems with his back (he clearly does). If he did not have problems with his back there would be no basis for the current disability (which, very generally, indicates a 20% reduction in the ability to work, a significant back problem). The only question in this case is the degree of disability based on clear criteria. Without taking into consideration the Veteran’s complaints, the current evaluation could not be justified. JOHN J CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. E. VanValkenburg, Associate Counsel