Citation Nr: 1808355	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  14-08 161	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to a rating in excess of 20 percent for chronic lumbar strain and degenerative disc disease of the lumbar spine.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

K. Brandt, Associate Counsel






INTRODUCTION

The Veteran served on active duty from March 1980 to February 1982, from January 11, 1986 to May 5, 1986, from January 15, 1987 to May 8, 1987, from November 17 1990 to May 24, 1991 and from April 21, 2000 to June 30, 2000.

This case comes before the Board of Veterans' Appeals (the Board) on appeal from May 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).


FINDING OF FACT

The Veteran's chronic lumbar strain and degenerative disc disease of the lumbar spine is manifested by no worse than forward flexion functionally limited to less than 60 degrees but greater than 30 degrees in consideration of pain and flare-ups; 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 chronic lumbar strain and degenerative disc disease of the lumbar spine, 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.A. § 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.

As the issue on appeal is for a higher rating, consideration of whether the criteria for the current rating is met is not necessary and the analysis below will focus on whether the Veteran meets the criteria for the next higher rating for her chronic lumbar strain and degenerative disc disease of the lumbar spine.  

In this case, the Veteran is assigned a 20 percent rating for chronic lumbar strain and degenerative disc disease of the lumbar spine, 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 her lumbar spine condition has worsened.  Ongoing VA treatment reports show continued impressions of degenerative joint disease of the lumbar spine and treatment for her associated low back pain.  This condition is characterized by decreased range of motion, tenderness, and pain.  

The Veteran was afforded a VA examination in April 2010.  She reported progressively increasing constant pain of her lower back.  Her average daily pain was a six out of ten.  The Veteran reported flare-ups, with pain as a ten out of ten with prolonged sitting, lifting, or bending at the waist.  She stated that she could only walk two blocks or for thirty minutes before needing to sit.  The Veteran reported that she used a heat wrap at night for inflammation and used medication to help the pain.  She also used a lumbar brace for physical activity.  The Veteran stated that she is limited in any type of physical activity including prolonged standing, walking, or lifting.  Upon examination, the examiner noted that the Veteran had an antalgic gait and scoliosis but there was no ankylosis of the spine.  The examiner also noted that the Veteran had difficulty standing during the examination.  Range of motion of the lumbar spine was flexion to 80 degrees with pain beginning at 50 degrees, extension to 10 degrees with pain, bilateral flexion to 30 degrees with pain, and bilateral rotation to 30 degrees with no pain.  

The Veteran was afforded another VA examination in December 2013.  The Veteran reported low back pain and decreased range of motion related to a recent fall that aggravated her back condition.  She stated that standing or walking for long periods of time can aggravate her condition.  The examiner noted that the Veteran stated that her lower back is slowing getting after the fall and that her range of motion is usually normal.  The examiner noted that the Veteran was experiencing a flare-up during the examination.  It was noted that the Veteran had moderate impairment of lumbar extension and a mild impairment of lumbar flexion due to the flare-up of lumbar pain.  Range of motion testing showed flexion to 70 degrees with pain, extension to 10 degrees with pain, bilateral flexion and bilateral rotation to 30 degrees or greater with no pain.  Repetitive motion testing revealed less movement than normal, pain on movement, and interference with sitting, standing, and weight-bearing.  Physical examination revealed no abnormal gait or spasm.  Testing revealed mild paresthesia and numbness of the right lower extremity.  The examiner noted that the Veteran has intervertebral disc syndrome (IVDS) but that there were no incapacitating episodes over the past twelve months.  The examiner also noted that a five view lumbar spine study performed on September 13, 2013, revealed mild levoscoliosis along the lower spine.

The Veteran was afforded a VA examination in August 2016.  The Veteran complained of increased pain in her lower back since the last examination.  The Veteran reported that the pain is constant but occasionally radiates into the right posterior thigh and leg.  She also complained of occasional numbness and tingling and reported taking medication.  The Veteran reported flare-ups with increased pain.  Range of motion testing showed flexion to 55 degrees, extension to 15 degrees, bilateral flexion to 20 degrees, and bilateral rotation to 30 degrees.  The examiner noted pain on the examination but opined that it did not result in functional loss.  Repetitive use testing showed no additional functional loss.  Physical examination revealed no guarding or muscle spasm.  There was no ankylosis noted.  Testing revealed mild paresthesia, mild intermittent pain and mild numbness of the right lower extremity.  The examiner noted that the Veteran has intervertebral disc syndrome (IVDS) but that there were no incapacitating episodes over the past twelve months.  The examiner opined that the Veteran's back condition impacts her ability to work as the Veteran has limited ability in lifting and bending.

VA treatment records show impressions of and treatment for a lumbar spine condition.  In March 2017, the Veteran presented to the emergency department with back pain.  Examination showed scoliosis and paraspinal tenderness.  Magnetic resonance imaging showed multilevel lumbar intervertebral degenerative disease with slight worsening compared to a study conducted in June 2015.  In April 2017, the Veteran reported a flare-up of back pain and that she had been in bed for two days due to the back flare-up. 

Based on a review of the evidence, entitlement to a disability rating in excess of 20 percent for degenerative joint disease of the lumbar spine is not warranted.  In order to warrant a higher rating, there must be the functional equivalent of limitation of flexion to 30 degrees, favorable ankylosis of the entire cervical spine, 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, decreased range of motion and flare-ups, the medical evidence clearly indicates that at its worst, range of motion has only been limited to 55 degrees flexion and there is no evidence of ankylosis. 

As noted above, Diagnostic Code 5243 provides for rating disabilities of the spine under either the General Rating Formula for Diseases and Injuries of the Spine, or under the Formula for Rating IVDS, which results in the higher rating.  Although the Veteran has been noted to have IVDS, however, there is no evidence of incapacitating episodes as contemplated by the regulation, and neither the lay or medical evidence suggests that there has been physician prescribed bed rest.  In light of the lack of evidence demonstrating any episodes requiring bed rest prescribed by a physician and any assertion on the part of the Veteran that the criteria for incapacitating episodes have been met, the Board finds that a higher rating under the formula for rating intervertebral disc syndrome based on incapacitating episodes is 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.  The Board observes that in a January 2014 rating decision, the RO granted a separate 10 percent rating for radiculopathy of the right lower extremity, effective December 19, 2013, and a September 2016 rating decision granted a 10 percent rating for radiculopathy of the left lower extremity, effective March 10, 2014.  The earlier of these awards the Veteran initially expressed disagreement with but did not subsequently perfect an appeal on, and the Veteran did not express any disagreement with the later award, thus, these matters are not for consideration here.  Additionally, there have not been any other neurological findings, to include bladder or bowel impairment, during the appeal period.

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

An increased rating in excess of 20 percent for the Veteran's lumbar spine degenerative joint disease is denied.




____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs