Citation Nr: 1807935 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 11-02 427 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an increased rating in excess of 20 percent for lumbar spondylosis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Brandt, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1967 to January 1969. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an April 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in May 2017, when it was remanded for additional development. In this May 2017 Board decision the issues of entitlement to service connection for radiculopathy of the right and left lower extremities were referred to the AOJ for development and adjudication. The AOJ must address these issues in the first instance. Thus, the Board will not take jurisdiction of these issues. FINDING OF FACT The Veteran's lumbar spondylosis is manifested by no worse than forward flexion functionally limited to less than 60 degrees but greater than 30 degrees in consideration of pain; there is no competent evidence of any ankylosis or incapacitating episodes. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for the Veteran's lumbar spondylosis have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran and his representative have not raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Increased Rating Legal Criteria A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 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 their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In evaluating musculoskeletal disabilities, the VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. See DeLuca, 8 Vet. App. at 206. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Court also has held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance." Id., quoting 38 C.F.R. § 4.40. In this case, the Veteran is assigned a 20 percent rating for lumbar spondylosis, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242. Disabilities of the spine are rated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating. Under the General Rating Formula (for Diagnostic Codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes), a 20 percent disability rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, 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 as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; a 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Also, any associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment, should be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. When rated based on incapacitating episodes, a 10 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is 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. 38 C.F.R. § 4.71a, DC 5243, Note (1). The normal findings for range of motion of the lumbar spine are flexion to 90 degrees, extension to 30 degrees, lateral flexion, right and left, to 30 degrees, and rotation, right and left, to 30 degrees. 38 C.F.R. § 4.71a , Plate V. Legal Analysis The Veteran contends that he is entitled to a higher rating for his service-connected lumbar spine disability. Ongoing private treatment reports show continued impressions of lumbar spondylosis and treatment for his associated low back pain. This condition is characterized by decreased range of motion, tenderness, pain which radiates to his lower extremities. The Veteran was afforded a VA examination in March 2009. He reported pain in the lower back which occurs four times a day lasting for approximately three hours each time. The Veteran reported the pain as aching and sharp and as 8 out 10 in severity. He stated that the pain can be elicited by physical activity and that he uses over the counter medication for pain relief. He denied any incapacitation but stated that he is unable to sit or stand for too long. The Veteran also reported severe pain and numbness that radiates down both legs and feet. He denied stiffness, loss of bladder control, or loss of bowel control. Upon examination, the examiner noted that there was no evidence of radiating pain on movement or muscle spasms, however tenderness was noted as paraspinals. There was no ankylosis. Range of motion of the lumbar spine was flexion to 50 degrees with pain, extension to 20 degrees with pain, bilateral flexion to 20 degrees with pain, and bilateral rotation to 15 degrees with pain. The examiner noted that joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. The examiner noted that there were no signs for IVDS and opined that the Veteran's back condition has a mild effect on his daily activity. A March 2009 letter from the Veteran's wife stated that the Veteran suffers from back pain that can be so severe that pain medication does not offer relief. The Veteran's wife also stated that his condition has worsened over the years and that it affects him while standing and sitting. A March 2009 private treatment record stated that the Veteran suffers from low back pain that radiates to the legs causing pain, tingling and numbness. The physician noted that the Veteran is unable to stand for too long and has to lie down and raise his legs. The physician also noted that an MRI showed L3 -L4 and L5-5 discs to be bulging and pressing on his nerves. He further stated that the Veteran's condition has worsened over the years. In his July 2009 NOD, the Veteran contended that his back condition has worsened. He stated that the pain affects his sleep and that he takes Tylenol every night. The Veteran also stated that he received two series of epidural steroid injections of the lumbar spine in June 2009. See July 2009 Correspondence and April 2010 Medical Treatment Record. In an October correspondence the Veteran stated that he is unable to sit for long periods of time and that lying down and standing provide the only relief. The Veteran also indicated that he still works standing all day. He stated that the injections did not help his pain and that the next step is surgery, which he hopes to avoid. The Veteran was afforded another VA examination in December 2014. He reported throbbing, constant pain with intermittent shooting pain to his thighs. He stated that the pain is aggravated by yard work, prolonged walking, sitting, and standing. He does not report paresthesia, weakness, bladder or bowel incontinence. The Veteran denies flare-ups. The examiner noted that the Veteran reported functional loss as constant throbbing lower back pain which worsens with bending and walking. Range of motion testing showed flexion to 60 degrees, extension to 20 degrees, bilateral flexion to 20, right lateral rotation to 25 degrees, and left lateral rotation to 20 degrees. The examiner noted pain but stated that is does not result in functional loss. There was also no pain with weight bearing. The Veteran was able to perform repetitive-use testing with at least three repetitions. According to the examiner, there was no additional loss of function or ROM after three repetitions. The Veteran was not being examined immediately after repetitive use over time, and therefore, the examiner was unable to opine, without resorting to mere speculation, that pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time. The examiner noted that the Veteran experienced disturbance of locomotion, interference with sitting, and interference with standing. There was no evidence of ankylosis or IVDS. The examiner noted mild intermittent pain of the right and left lower extremities. The examiner further opined that the Veteran's condition affects his ability to work as there is increased pain and decreased range of motion with prolonged walking, bending, standing, and sitting. February 2017 VA treatment records show treatment for the Veteran's lumbar spondylosis. It was noted that the Veteran's condition interferes with his daily living, physical activities, sleep, social activities and walking. It was also noted that the Veteran takes Acetaminophen with good results. The Veteran was afforded a VA examination in June 2017. He reported increasing back pain over the last few years. The Veteran stated that the pain is on and off over the left lower back and radiates to the legs with intermittent numbness and tingling in both legs. He further reported that he uses Tylenol for pain as needed. The Veteran reported problems with severe lifting and carrying, as well as problems with prolonged sitting and standing. No flare-ups were reported. Range of motion testing showed flexion to 60 degrees, extension to 25 degrees, right lateral flexion to 20 degrees, left lateral flexion to 15 degrees, and bilateral rotation to 30 degrees. The examiner noted pain on the examination but opined that it did not result in functional loss. According to the examiner, there was no additional loss of function or ROM after three repetitions. The Veteran was not being examined immediately after repetitive use over time, and therefore, the examiner was unable to opine, without resorting to mere speculation, that pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time. The examiner noted there was pain on passive range of motion but there was no pain with weight bearing or non-weight bearing. Physical examination revealed no guarding or muscle spasm and there was no ankylosis noted. Testing revealed mild paresthesia, mild intermittent pain and mild numbness of the right and left lower extremities. There was no evidence of ankylosis or IVDS that required bed rest. The examiner noted that the Veteran occasionally uses a cane, but stated that the Veteran had a normal gait without external support and was not walking with a cane at arrival or during the examination. The examiner further opined that the Veteran's condition affects his ability to work as he has problems with prolonged standing and sitting, and heavy lifting or carrying. Based on a review of the evidence, entitlement to a disability rating in excess of 20 percent for lumbar spondylosis is not warranted. In order to warrant a higher rating, there must be the functional equivalent of limitation of flexion to 30 degrees, or favorable ankylosis of the entire lumbar spine. See DeLuca, supra; 38 C.F.R. § 4.7. In this case, however, limitation of flexion to 30 degrees or less or ankylosis has not been shown by any of the medical evidence of record, to include as due to pain, weakness, premature or excess fatigability, and incoordination. See DeLuca, 8 Vet. App. at 202; see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Although the Veteran has consistently complained of pain and decreased range of motion, the medical evidence clearly indicates that at its worst, range of motion has only been limited to 50 degrees flexion and there is no evidence of ankylosis. As for a higher rating under Diagnostic Code 5243 for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the Board notes that the December 2014 and June 2017 VA examiners indicated that the Veteran did not have intervertebral disc syndrome. Moreover, there is no evidence of incapacitating episodes requiring bed rest prescribed by a physician. As such, disability ratings higher than the currently assigned ratings for the service-connected lumbar spine under the rating criteria for intervertebral disc syndrome are not warranted. As to whether additional compensation for neurological impairment is warranted at any time during the appeal period, the General Rating Formula requires consideration of neurological findings, to include bladder or bowel impairment, separate from orthopedic manifestations. As noted in the Introduction, the Board observes that in a May 2017 Board decision the issues of entitlement to service connection for radiculopathy of the right and left lower extremities were referred to the AOJ. Thus, the Board will not take jurisdiction of these issues. Additionally, there have not been any other neurological findings, to include bladder or bowel impairment, during the appeal period. The Board observes the Veteran's representative's argument made in the December 2017 informal hearing presentation that the Veteran is entitled to an increased evaluation for his lumbar spondylosis as the AOJ failed to take into consideration the affect that his lumbar spondylosis has on his ability to work. Specifically, the representative referenced the private doctor's statement that the Veteran's lumbar spondylosis affects his ability to work by limiting the time he can stand or sit. The Board concludes that the assigned 20 percent rating does contemplate the Veteran's limitations on his ability to sit and stand. For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; incoordination; pain on movement; swelling; deformity; instability of station; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59. While the Veteran has limitations on sitting and standing, as well as limitations on his ability to walk, bend, lift, and carry, such complaints are contemplated by the rating criteria and the provisions of 38 C.F.R. §§ 4.40, 4.45 and 4.59, as these situations arise because of the above factors. Moreover, although the Veteran's lumbar spine disability affects his ability to work as discussed above, the evidence does not suggest, and the Veteran does not contend that he is unable to work due to his service-connected lumbar spine disability. The preponderance of the evidence is against increased ratings in excess of 20 percent for the Veteran's service-connected low back disability. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. ORDER Entitlement to a rating in excess of 20 percent for the Veteran's lumbar spondylosis is denied. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs