Citation Nr: 18160131 Decision Date: 12/21/18 Archive Date: 12/21/18 DOCKET NO. 17-09 871 DATE: December 21, 2018 ORDER A rating in excess of 40 percent for degenerative disc disease (DDD) L4-5, L5-S1, from July 1, 2016 is denied. FINDING OF FACT From July 1, 2016, the Veteran’s DDD L4-5, L5-S1 has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine or the entire spine, and there have been no incapacitating episodes of intervertebral disc syndrome (IVDS). CONCLUSION OF LAW From July 1, 2016, the criteria for a rating in excess of 40 percent for the Veteran’s DDD L4-5, L5-S1 have not been met or approximated. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.105, Part 4, § 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDING AND CONCLUSION Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4. The Veteran seeks a rating in excess of 40 percent for lumbar DDD from July 1, 2016. The Board notes that when he filed this claim for an increased rating in June 2016, the disability was rated 40 percent disabling, effective from October 14, 2010. The August 2016 rating decision on appeal granted a temporary total disability rating based on convalescence under 38 C.F.R. § 4.30 from March 22, 2016, and continued the 40 percent rating from July 1, 2016, upon the termination of the convalescence period. The Veteran has disagreed with the continued 40 percent rating, arguing that he has pain and limited motion which should equate to a higher rating. The Board finds that a rating in excess of 40 percent is not warranted from July 1, 2016. Here, the 40 percent rating was assigned initially based on treatment and VA examination findings consistent with flexion of the thoracolumbar spine limited to 30 degrees, or findings that did not indicate substantial improvement from that level. This supports a 40 percent rating under the General Rating Formula for Diseases and Injuries of the Spine at 38 C.F.R. § 4.71. It is noted that the Veteran underwent lumbar fusion at L4-5, L5-S1 and laminectomy in March 2016, which was the basis for his convalescent rating from March 22, 2016 through June 30, 2016. The question for the Board is whether the Veteran’s DDD meets or more nearly approximates the criteria for a higher rating as of July 1, 2016. Specifically, a 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. A 60 percent rating is warranted for IVDS with incapacitating episodes (a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician) having a total duration of 6 weeks in a 12-month period. The criteria for a rating in excess of 40 percent are not met or approximated at any time from July 1, 2016. Here, the Veteran has not asserted, nor do treatment records or examination reports show, any unfavorable ankylosis of the spine or IVDS causing any incapacitating episodes. The July 2016 VA spine examination report reflects that the Veteran has no ankylosis of the spine and also notes that there have been no incapacitating episodes. VA treatment records dated from July 2016 into January 2018 reflect complaints of back pain but do not indicate ankylosis or incapacitating episodes. The Board is mindful of the Veteran’s assertions as to pain and that, as required by 38 C.F.R. § 4.59, joints should be tested for pain on both active and passive motion, in weight bearing and non-weight bearing, and if possible, with the range of opposite undamaged joint. Correia v. MacDonald, 28 Vet. App. 158 (2016). However, the appellant is in receipt of the maximum evaluation for limitation of motion. In fact, the higher evaluation would be consistent with no appreciable motion; further discussion would serve no useful purpose and would not provide for a higher evaluation based upon limitation of motion. See Johnston v. Brown, 10 Vet. App. 80 (1997). Moreover, the General Rating Formula for the spine is used to rate spine disability with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected. His complaints of pain and limited motion are consistent with his 40 percent rating. Accordingly, a 40 percent rating adequately represents any functional impairment attributable to the disability since July 1, 2016. See 38 C.F.R. §§ 4.41, 4.10. The preponderance of the evidence is against a rating in excess of 40 percent since July 1, 2016. Hart v. Mansfield, 21 Vet. App. 505 (2007).   Finally, to the extent that the Veteran may be urging that his period of convalescence be extended beyond July 1, 2016, the Board declines to grant a higher rating under this theory. The treatment records as well as the July 2016 VA examination report reflect that he was substantially recovered from and not incapacitated by his March 2016 surgery beyond June 30, 2016. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. RIPPEL