Citation Nr: 1817229 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 10-41 612 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to an initial disability rating in excess of 10 percent prior to November 29, 2010, and in excess of 20 percent thereafter, for degenerative lumbar spine changes ("low back disability"). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD T. Talamantes, Associate Counsel INTRODUCTION The Veteran served on active duty between August 1967 and June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Appeals Management Center (AMC) in Washington, D.C. Jurisdiction over the appeal has been transferred to the Regional Office (RO) in Phoenix, Arizona. In the November 2009 rating decision the RO granted service connection for low back disability and assigned a 10 percent disability rating, effective May 20, 2008. In a February 2012 rating decision the RO increased the disability rating to 20 percent, effective November 29, 2010. In a July 2014 rating decision the RO granted an earlier effective date of January 7, 2003. The Board remanded this matter in July 2017 in order to afford the Veteran VA examination to determine the current severity of his low back disability. The Board finds that the remand directives have been substantially complied with and therefore will adjudicate the matter. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran and his wife testified before the undersigned Veterans Law Judge at a travel Board hearing in March 2012. A transcript of the hearing has been associated with the claims file. FINDING OF FACT For the entire appeal period the Veteran's low back disability was manifested by painful limitation of motion with forward flexion to 40 degrees; or moderate limitation of motion. CONCLUSION OF LAW For the entire rating period, the criteria for an initial rating of 20 percent for degenerative lumbar spine changes have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102 , 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.71a, Diagnostic Codes 5235-5243 (2017); 38 C.F.R. § 4.71a , Diagnostic Codes 5003, 5292,5293, 5295 (2003). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). A veteran's entire history is to be considered when making disability evaluations. See 38 C.F.R. 4.1 (2016); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2017). Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Id.; see also 38 C.F.R. § 4.59 (2017) (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45 (2017). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1(2011). 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. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. §4.3. During the pendency of the Veteran's appeal, the regulations used to evaluate diseases and injuries of the spine were revised, including the renumbering of the Diagnostic Codes, effective September 26, 2003. See 38 C.F.R. § 4.71a (Diagnostic Codes 5292, 5293, and 5295)(2003); 38 C.F.R. § 4.71a (Diagnostic Codes 5235, 5236, 5237, 5238, 5239, 5240, 5241, 5242, 5243)(2017). This generally requires the claim to be considered under both the old and new criteria and if one yields a more favorable result that is the criteria used. However, the effective date for an award under the new criteria cannot be earlier than the date the new criteria became effective. Under the old rating criteria, in effect prior to the September 26, 2003 revision, Diagnostic Code 5292 governed limitation of motion of the thoracolumbar spine and provided a 10 percent evaluation for slight limitation of motion, a 20 percent evaluation for moderate limitation of motion, and a 40 percent evaluation for severe limitation of motion. 38 C.F.R. § 4.71a , Diagnostic Code 5292 (2003). The Board observes that the words "moderate" and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 . Under provisions of Diagnostic Code 5293, in effect from September 23, 2002 to September 25, 2003, intervertebral disc syndrome (IVDS) (preoperatively or postoperatively) is evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher rating. 38 C.F.R. § 4.71a , Diagnostic Code 5293. A 10 percent evaluation was warranted for IVDS with incapacitating episodes having a duration of at least one week, but less than two weeks during the past 12 months. A 20 percent rating was warranted for IVDS with 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 was warranted for IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. Id. The highest rating of 60 percent was warranted for IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months. Id. For purposes of evaluation under the provisions of Diagnostic Code 5293 in effect from September 23, 2002, through September 25, 2003, 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. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. 38 CFR 4.71a , Diagnostic Code 5293, Note (1). When evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. 38 CFR 4.71a , Diagnostic Code 5293, Note (2). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, rate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher rating for that segment. 38 C.F.R. § 4.71a , Note (3). Under the old rating criteria, in effect prior to the September 26, 2003 revision, Diagnostic Code 5295 provided that a 10 percent disability rating is assigned for lumbosacral strain with characteristic pain on motion. A 20 percent disability rating is assigned where there is evidence of muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. A 40 percent disability rating was assigned where the symptoms are severe, with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-athritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a , Diagnostic Code 5295 (2003). The Board notes that 40 percent is also the maximum schedular rating available under Diagnostic Code 5295 for lumbosacral strain. Effective on September 26, 2003, the Schedule for Rating Criteria mandated that disabilities of the spine under Diagnostic Codes 5235 to 5243 will be evaluated under a General Rating Formula for Diseases and Injuries of the Spine. Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Under this scheme, a 10 percent rating is assigned for forward flexion greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine 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. The criteria provides for a 20 percent disability rating 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 disability rating is assigned for forward flexion of the thoracolumbar spine to 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. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 through 5243. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. IVDS may be evaluated under either the General Rating Formula or under the IVDS Formula, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The criteria describing the ratings are the same as those that became effective in September 2002. Note (1) provides that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Factual Background and Analysis The Veteran is currently rated at 10 percent from January 7, 2003 to November 28, 2010 and at 20 percent thereafter. The Veteran contends that the effects of his back disability warrant higher ratings. The Veteran has been afforded six VA examinations in connection with his claim. These were in September 2003, September 2005, July 2009, November 2010, March 2014, and September 2017. A June 2003 private medical note indicates flexion at 40 degrees, extension at 10 degrees, left rotation at 15 degrees, right rotation at 15 degrees and left and right lateral flexion at 10 degrees. In an August 2003 letter a private doctor indicated that he has treated the Veteran for the last nine years and finds substantial limitations in motion of his spine. At a September 2003 VA examination, x-rays were performed and the Veteran was diagnosed with intervertebral osteochondritis, arthrosis of the apophyseal joints, loss of height and anterior wedging. The examiner noted slight lumbar tenderness, with flexion at 70 degrees. In a September 2005 VA examination the Veteran reported constant pain rating it as an 8 out of 10 and as a 10 out of 10 when doing certain activities. (His reported back pain increased to 10/10 when rising from the chair at the examination.) He reported flare ups and muscle cramp/spasms. No incapacitating episodes in the last year were reported. His gait and speed were noted as slow with a moderate right limp-antalgic limp. The examiner concluded that there were no muscle spasms or sciatica. In a seated position forward flexion was to 40 degrees. No painful arc of motion was noted, but increased pain at the maximum of 40 degrees of flexion was noted. In a standing position forward flexion was noted to 85 degrees. The examiner noted five degrees of loss of extension with repeated back extensions due to pain. The Veteran was diagnosed with degenerative disc disease and degenerative arthritis. The examiner noted that pain is the major functional impact on the Veteran's spine and concluded that the Veteran's functional impairment was moderate. The July 2009 VA examination illustrates abnormal gait, as it was noted that the Veteran walked with a limp to the left shifting his weight to the left, lumbar flattening . The Veteran reported flares occurring once a week, lasting one to three days. The pain during the flare was described as moderate, or a 5/10. He denied incapacitating episodes. Flexion on active and passive range of motion (ROM) was listed as 0 to 90 degrees. He was diagnosed with degenerative disc disease, spondylosis of all levels, loss of height, and with mild degenerative change of the sacroiliac joints. A June 2010 VA treatment note indicates a diagnosis of chronic low back pain, degenerative disc disease of lumbar spine. During the November 2010 VA examination the Veteran reported flares, stating that they happen weekly and last one to two days. It would impose limitation on walking or prolonged sitting, bending and lifting due to increased pain. No incapacitating episodes in the last 12 months were reported. Gait was noted as normal, with flexion noted at 45 degrees. Extension was noted at 20 degrees, right and left lateral flexion at 30 degrees, right and left lateral rotation noted as 45 degrees. There were no muscle spasms or guarding severe enough to result in abnormal gait. Objective evidence of pain with active motion for flexion was noted as 45 degrees and extension to 20 degrees. Objective evidence of pain following repetitive motion for flexion was noted at 45 degrees and extension at 20 degrees. He was diagnosed with multilevel degenerative disc disease, probable underlying canal and neural foraminal stenosis. During the March 2014 VA examination the Veteran reported flare ups, stating it renders him incapable of walking. He was diagnosed with degenerative arthritis of the spine. The examiner noted forward flexion ends at 70 degrees (normal endpoint is 90) and objective evidence of painful motion began at 60 degrees. The examiner noted the following additional ROM: extension to 20 degrees, right lateral flexion to 25 degrees, left lateral flexion to 30 degrees, right lateral rotation to 20 degrees, left lateral rotation to 25 degrees, forward flexion to 60 degrees, and extension to 20 degrees. The examiner concluded there was no indication of radiculopathy or ankylosis of the spine. The examiner diagnosed him with IVDS of the thoracolumbar spine and noted that he had incapacitating episodes having a total duration of at least six weeks during the past 12 months. An October 2016 VA treatment note indicates a diagnosis of advance degenerative spondylotic change and facet joint arthropathy of the lumbar spine. This examiner concluded that further evaluation with MRI should be considered. During the September 2017 VA examination the Veteran was diagnosed with degenerative arthritis of the spine and lumbar spondylosis with spinal stenosis, which the examiner noted that this was an updated diagnosis representing a progression of the Veteran's back condition. The Veteran reported constant bilateral low back pain with occasional tingling in the posterior aspect of both upper legs. He denied radicular pain, but reported that he is no longer able to stand up straight. However, forward flexion was noted as 0 to 70 degrees, extension as 0 to 10 degrees, right and left lateral flexion as 0 to 25 degrees, right lateral rotation as 0 to 30 degrees, and left lateral rotation as 0 to 25 degrees. There was evidence of pain with weight bearing, but no pain with non-weight bearing (at rest). The examiner concluded there was no guarding or muscle spasm, radicular pain or any other signs or symptoms due to radiculopathy, ankylosis of the spine, or IVDS of the spine. Also, the report indicates that the Veteran did not report flare-ups. After review of the evidence, the Board finds that for the entire appellate period a 20 percent rating is warranted because the evidence of record shows moderate limitation of motion of the lumbar spine with evidence of flare-ups, painful motion, and functional loss. When evaluating the Veteran's lumbar spine based upon limitation of motion, DC 5292, the Veteran's lumbar spine condition is moderate during the appeal period. The Veteran's VA examination and VA treatment records do not show severe limitation of the lumbar spine during this time period. His examinations revealed painful motion at the end of his range of motion and moderate functional impairment. When evaluating the Veteran's lumbar spine as a lumbosacral sprain, DC 5295, the Veteran would also be entitled to a 20 percent disability rating based on the loss of spine motion shown in the Veteran's examinations. The preponderance of the evidence is against a finding supporting a higher rating under applicable diagnostic criteria for the period from September 26, 2003 under the General Rating Formula and DCs 5237 and 5242. The Veteran has an abnormal gait, which meets or approximates the criteria for a 20 percent disability rating. The Veteran is not entitled to a higher disability rating because he does not have ankylosis and his forward flexion of the thoracolumbar spine is more than 30 degrees. Under the current criteria, the Veteran would also not receive a higher evaluation if his lumbar spine were evaluated as IVDS under Diagnostic Code 5293, because the Veteran has never been ordered on bed rest by a physician. The Board recognizes that there are VA treatment records that mention lumbar radiculopathy. See VA medical treatment notes dated January 2011, February 2011 and November 2017. However, these records do not provide a reason nor specify the specific nerve affected. Therefore, the Board finds that these brief references are outweighed by the March 2014 and September 2017 VA examiners, both of which explicitly stated that the Veteran did not have radiculopathy. Therefore, separate ratings based on neuropathy is not warranted. In arriving at this conclusion, the Board has carefully considered the lay assertions of the Veteran as well as the legal argument made in the Appellate Brief filed January 2018. The Board understands his belief that his symptoms warrant a disability rating in excess of 20 percent. However, the Board finds that the VA examinations, VA and private treatment records, outweigh the Veteran's contentions that his low back disability symptoms warrant an excess of 20 percent disability rating. Notably, while the Veteran reported flare-ups, it is observed that even when his pain was at its maximum at the 2005 examination (10/10), he was able to forward flex to 85 degrees in a standing position. Likewise, in 2016, he did not report any flare-ups. Thus, it is considered the rating assigned reasonably contemplates any flare-ups as may occur. ORDER Subject to the law and regulations governing the payment of monetary benefits, an initial disability rating of 20 percent, but no higher for degenerative lumbar spine changes is granted. ____________________________________________ M.E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs