Citation Nr: 18159802
Decision Date: 12/20/18	Archive Date: 12/19/18

DOCKET NO. 16-62 170
DATE:	December 20, 2018
ORDER
Entitlement to an increased rating in excess of 20 percent disabling for degenerative arthritis of spine is denied. 
FINDING OF FACT
The Veteran’s back condition did not have forward flexion limited to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine; or intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks during the past 12 months. 
CONCLUSION OF LAW
The criteria for a rating in excess of 20 percent for degenerative arthritis of spine has not been met. 38 U.S.C. §§ 1155, 5107 (b) (2012); 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Code 5003, 5242, 5243 (2018).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from July 1972 to October 1998. 
This mater comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).
An October 2008 rating decision by the RO granted an increased 20 percent disability rating for degenerative arthritis of spine, under Diagnostic Code 5242 and 5003. As this is not the maximum disability rating possible, the appeal remains in appellate status and is properly before the Board. AB v. Brown, 6 Vet. App. 35 (1993).
1. Degenerative arthritis of spine
Legal Principles
A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. § Part 4 (2018). 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 in or aggravated during military service and their residual conditions in civil occupations. The degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1 (2018).
Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the action. 38 C.F.R. § 4.40 (2018). The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling, and pain on movement. 38 C.F.R. § 4.45 (2018).
Additionally, when evaluating a musculoskeletal disability, VA must consider functional loss due to pain, weakness, excess fatigability, or incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); 38 C.F.R. §§ 4.40, 4.45 (2018). 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. The examiner should also determine the point, if any, at which such factors cause functional impairment. See Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011); see also 38 C.F.R. § 4.59 (2018).
If two evaluations are potentially applicable, the higher evaluation 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 (2018).  
The General Rating Formula for Diseases and Injuries of the Spine assigns evaluations with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of the injury or disease. The General Rating Formula for Diseases and Injuries of the Spine provides that 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 evaluation is warranted if there is forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 
Several “Notes” following the criteria of the General Rating Formula for Diseases and Injuries of the Spine provide information and insight necessary for the Formula’s utilization in determining the assignment of appropriate disability ratings for musculoskeletal conditions. Pertinent to the increased rating claim on appeal, “Note 5” instructs that 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id.
“Note 6” instructs that intervertebral disc syndrome (IVDS) is to be evaluated either under the General Rating Formula for Diseases and Injuries of Spine, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2018).
Discussion
Currently, the Veteran’s back condition is rated under Diagnostic Code 5242. The Veteran contends this rating does not adequately reflect the severity of her back condition. 
In a March 2015 private treatment record, the Veteran complained of constant lumbar spine pain, rating the pain as an 8 on a scale from 1 to 10 at its worst. Upon examination, range of motion was the following: active flexion from 0 to 80 degrees and active extension from 0 to 20 degrees. 
In a September 2015 VA examination, range of motion was the following: forward flexion from 0 to 40 degrees; bilateral lateral flexion from 0 to 15 degrees; and bilateral lateral rotation from 0 to 30 degrees. There was objective evidence of pain on active range of motion, but it did not result in or cause functional loss. There were no additional limitations after three repetitions of range of motion.  There was no ankylosis noted or any episodes of IVDS in the past 12 months. Veteran regularly used a cane when ambulating. 
In an October 2015 private treatment record, the Veteran complained of limited function where after 20 minutes of standing the pain becomes unbearable. Her symptoms included both numbness and weakness. 
In a February 2016 private treatment record, the Veteran received an injection to relieve the pain she was experiencing. She has a history of receiving injections for the same reason. 
In a March 2016 VA examination, the Veteran continued her complain of serious to severe burning constant pain in her lower back. She contends that she cannot load the dishwasher, cannot garden, and cannot stand to cook for longer than 15-minute intervals. It is reported that the Veteran has had several epidural injections and nerve blocks with little to no relief. She contends that her life is consumed with pain to an 80 percent level. Upon examination, range of motion was the following: forward flexion from 0 to 50 degrees; bilateral lateral flexion from 0 to 15 degrees; and bilateral lateral rotation from 0 to 25 degrees. There was evidence of pain with weight bearing, but there was no loss of function or range of motion after three repetitions. When asked if pain significantly limited the Veteran’s functional ability with repeated use over a period of time, the examiner claimed that he was unable to say without mere speculation. The examiner explained that he believes that the Veteran would have additional limitation during joint flares or when the joint is used repeatedly over a period of time due to pain and difficulty continuing joint movement. There was no ankylosis and even though the Veteran does have IVDS, there were no episodes of prescribed bed rest during the past 12 months.
In light of the foregoing, the Board finds that the Veteran’s back condition does not warrant a rating in excess of 20 percent. A rating above 20 percent would require forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Throughout the appeal period, the Veteran has not been shown to have such limitation of motion of the thoracolumbar spine.  38 C.F.R. § 4.71a, Diagnostic Code 5242 (2018). The Veteran’s March 2016 VA examination indicates that the Veteran had forward flexion from 0 to 50 degrees. The examiner had to speculate that the Veteran would have additional limitations and pain if used repeatedly over a period of time. Furthermore, there was no indication of any ankylosis. Accordingly, the Board finds that the criteria for a rating in excess of 20 percent have not been met during the entire appeal period. 
Consideration has been given to assigning a rating under Diagnostic Code 5243 for IVDS based on incapacitating episodes rather than on limitation of motion.  While the Veteran was diagnosed with IVDS at the September 2015 VA examination, there is no indication that these incapacitating episodes have lasted at least a week since then.  If the Veteran had at least one week of incapacitating episodes, then under Diagnostic Code 5243, the Board could assign her a 10 percent rating. This would be lower than the 20 percent she already is assigned, thus, it would not be beneficial for the Veteran. 38 C.F.R. § 4.71a, Diagnostic Code 5243.
Additionally, the Board has considered whether an evaluation is warranted on the basis of functional loss due to pain. The Veteran describes her pain as serious-to-severe constant pain. Notably, the rating code for this disability contemplates pain by its own terms. As such, the complaints the Veteran expressed are contemplated in the rating assigned. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995); 38 C.F.R. §§ 4.40, 4.45 (2018). Thus, the Board concludes that the criteria for a rating in excess of 20 percent for the Veteran’s back condition have not been met. 
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Consideration has also been given to assigning a separate compensable rating for neurological impairment in the lower extremities or other neurological abnormalities related to the low back disability such as bowel or bladder incontinence. As the Veteran has not been diagnosed with any additional neurological impairment due to his degenerative arthritis of the spine, a separate rating for neurological impairment of the lower extremities is not warranted.
 
THOMAS H. O'SHAY
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Imam, Associate Counsel