Citation Nr: 18110697 Decision Date: 06/13/18 Archive Date: 06/13/18 DOCKET NO. 12-22 817 DATE: June 13, 2018 ORDER For the period prior to June 2, 2012, entitlement to an initial evaluation of 40 percent, but not higher, for degenerative disc disease of the lumbar spine is granted. For the period beginning June 2, 2012, entitlement to an initial evaluation in excess of 20 percent for degenerative disc disease of the lumbar spine is denied. FINDINGS OF FACT 1. For the period prior to June 2, 2012, the Veteran’s degenerative disc disease of the lumbar spine manifested forward flexion of 80 degrees and a combined range of motion of 212 degrees, with pain throughout the entire range of motion but no incapacitating episodes requiring bed rest prescribed by a physician. 2. For the period beginning June 2, 2012, the Veteran’s degenerative disc disease of the lumbar spine manifested, at worst, forward flexion of 60 degrees and a combined range of motion of 200 degrees without incapacitating episodes requiring bed rest prescribed by a physician. CONCLUSIONS OF LAW 1. For the period prior to June 2, 2012, the criteria for an initial evaluation of 40 percent, but not higher, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5242, 5243. 2. For the period beginning June 2, 2012, the criteria for an initial evaluation in excess of 20 percent for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5242, 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1976 to November 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2010 rating decision. 1. Entitlement to an initial evaluation in excess of 20 percent for degenerative disc disease of the lumbar spine A 10 percent evaluation was assigned effective January 19, 2010. A May 2013 rating decision increased the evaluation to 20 percent, also effective January 19, 2010. The Veteran contends that an increased rating is warranted for lumbar spine degenerative disc disorder (DDD) as his symptoms are more severe than what is contemplated by the current evaluation. Disability evaluations are determined by comparing a veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code (DC), the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran’s entire history is reviewed when making disability ratings. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In cases where, as here, the question for consideration is the propriety of the initial disability rating assigned, however, an evaluation of the medical evidence since the grant of service connection and a consideration of the appropriateness of a “staged rating” is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). A staged rating compensates the veteran for variations in the disability’s severity since the effective date of his award. The Veteran’s service-connected lumbar spine DDD has been evaluated using criteria of DC 5242. Under the General Rating Formula for Diseases and Injuries of the Spine (which includes DC 5242), a 10 percent rating is appropriate where forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or there is vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted when forward flexion of the thoracolumbar spine is 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 is present enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is appropriate when forward flexion of the thoracolumbar spine is 30 degrees or less; or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine and a maximum 100 percent evaluation is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. In applying these regulations VA should obtain examinations in which the examiner determines whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. 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, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. Also, under DC 5243, intervertebral disc syndrome can be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 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. Under this DC, a 10 percent rating can be assigned with incapacitating episodes of at least 1 week but less than 2 weeks during the past year. A 20 percent rating can be assigned where incapacitating episodes of at least 2 weeks but less than 4 weeks during the past year are shown to have occurred. For a 40 percent rating, the incapacitating episodes need to have a total duration of at least 4 weeks but less than 6 weeks during the past year. For a 60 percent rating, the incapacitating episodes need to have a total duration of at least 6 weeks during the past year. 38 C.F.R. § 4.71a. For the period prior to June 2, 2012, the Board finds that a 40 percent rating is warranted for the service-connected lumbar spine DDD. With respect to limitation of motion, the Veteran demonstrated forward flexion of 80 degrees and a combined range of motion of 212 degrees, with pain throughout the entire range of motion, at the September 2010 VA examination. The Veteran reported daily back pain that “comes and goes throughout the day depending upon what he is doing” but denied any flare ups. The VA examination recorded no lumbar spasm, no use of any assistive device, and no incapacitating episodes over the last year in which a physician prescribed bed rest. Because the September VA examination documented pain throughout the entire range of motion but no periods of incapacitating episodes over the past year in which a physician prescribed bed rest, the Board finds the Veteran’s disability for the period prior to June 2, 2012, most nearly approximates forward flexion of the thoracolumbar spine to 30 degrees or less. Accordingly, a 40 percent rating is appropriate for this period. A rating in excess of 40 percent is not warranted because higher ratings require ankylosis. Although the Board must consider functional factors when determining the impairment manifested by orthopedic disabilities, the provisions of 38 C.F.R. § 4.40 and § 4.45 are not for consideration where, as here, the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board cannot conclude that the Veteran’s disability most nearly approximates ankylosis when he clearly retained some useful motion of the thoracolumbar spine. The Board finds that the competent evidence of record establishes that the Veteran’s thoracolumbar spine was not ankylosed, and a rating in excess of 40 percent is not warranted based on limitation of motion and functional factors in the period prior to June 2, 2012. Turning to the period beginning June 2, 2012, the Board finds that a 20 percent rating is again appropriate in this period. With respect to limitation of motion and considering pain, the Veteran demonstrated forward flexion to 65 degrees and a combined range of motion to 215 degrees. Similar results were found at a May 2013 VA examination which noted forward flexion of 60 degrees and a combined range of motion to 200 degrees, and at a January 2017 VA examination, where forward flexion to 90 degrees and a combined range of motion to 225 degrees was documented. At each of the three VA examinations, no additional limitation of range of motion was found on repetition. Such results are consistent with a 10 percent evaluation under the general rating formula, but the Board will leave the current 20 percent rating unaltered. The functional impairment associated with the Veteran’s lumbar spine disability for the period beginning June 2, 2012, must also be considered. The June 2012 VA examination noted pain on movement and less movement than normal but not weakened movement, excess fatigability, incoordination, or instability. This examination also recorded mild tenderness on palpation in the left lower paraspinous muscle but no guarding or muscle spasm of the thoracolumbar spine. The Veteran reported at this VA examination that he had flare-ups which created difficulty bending, lifting, and performing routine household chores. At the May 2013 VA examination, the examination noted pain on movement and less movement than normal but not weakened movement, excess fatigability, incoordination, or instability. The VA examination also recorded mild diffuse lumbar paraspinous tenderness on palpation without guarding or muscle spasm. At the VA examination, the Veteran again reported flare-ups of the back, which created difficulty doing strenuous chores that involved bending or lifting such as yard work. In the January 2017 VA examination, the examination noted muscle spasm that did not result in abnormal gait or spinal contour. The Veteran reported flare-ups twice a month and noted that his back condition limited heavy lifting and outside activities. The Veteran also reported that the more he used his back, the more pain he experienced, which affected range of motion. The January 2017 VA examination noted that it would be speculation to state how much the range of motion was affected. Considering the Veteran’s objective measures of limitation of motion and his reported functional effects, the Board finds the current 20 percent rating is appropriate because it compensates the Veteran at a level greater than the objective measures indicate, which accounts for the reported decrease in range of motion when pain increases. There is no indication that such limitation of range of motion rises to the level of 30 degrees forward flexion or less, and the Veteran’s thoracolumbar spine is not ankylosed. Accordingly, a 20 percent rating is appropriate for the period beginning June 2, 2012. The Board has also considered whether higher ratings are warranted due to intervertebral disc disease. For this period, neither the Veteran’s statements nor the objective medical evidence support a finding of incapacitating episodes of back pain as defined in 38 C.F.R. § 4.71a. The June 2012 and May 2013 VA examinations reported intervertebral disc syndrome but neither found any incapacitating episodes over the last year. The January 2017 VA examination indicated that intervertebral disc syndrome was not present. An increased rating is therefore not warranted during the period beginning June 2, 2012, based on intervertebral disc disease. Finally, entitlement to a total disability based on individual unemployability (TDIU) is an additional element of all claims for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran has not claimed that his lumbar spine DDD renders him incapable of securing or following a substantially gainful occupation, nor does the record support such a finding. The September 2010, June 2012, and January 2017 VA examinations stated that the Veteran’s DDD affects his work because it affects his ability to sit for prolonged periods, perform repetitive lifting, get on and off the Veteran’s forklift, and walk or stand for prolonged periods. The Board finds this does not rise to the level of rendering him incapable of securing or following substantially gainful employment, however, because he may engage in sedentary work (with breaks from sitting) or physical work that does not require repetitive lifting (with breaks from standing and walking). Thus, a remand for TDIU is not required. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W. Ripplinger, Associate Counsel