Citation Nr: 19174751 Decision Date: 09/26/19 Archive Date: 09/25/19 DOCKET NO. 13-00 231 DATE: September 26, 2019 ORDER Entitlement to an evaluation in excess of 20 percent for residuals of a compression fracture at L2, a mild anterior wedge deformity of the L2 vertebral body, small disc bulges at L4-L5, and degenerative disc disease (“lumbar spine disability”) is denied. FINDING OF FACT The Veteran’s lumbar spine disability is manifested by pain and limited motion. Remaining functional flexion is better than 30 degrees. CONCLUSION OF LAW The criteria for a disability rating greater than 20 percent for a lumbar spine disability have not been met. 38 U.S.C. § 1155 38 C.F.R. §§, 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on duty from January 2000 to June 2000 and from September 2008 to June 2011. Service in 2000 was probably active duty for training. This matter first came before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Board issued a decision in February 2018 remanding for additional development, in particular to afford the Veteran a new VA examination in light of the Veteran’s statements that his disability had worsened. In the course of this appeal, the Veteran requested a hearing before a Veterans Law Judge. A video hearing before a Veterans Law Judge was scheduled for January 2018; however, the Veteran failed to appear on the scheduled date, and failed to provide an explanation regarding his absence. Thus, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704. Entitlement to an initial evaluation in excess of 20 percent for a lumbar spine disability. Currently the Veteran’s lumbar spine disability is rated at 20 percent. The Veteran contends that he is entitled to a higher rating. As explained below, the Board has determined that a higher rating is not warranted. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent (“flare-ups”) due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Disabilities of the spine are typically rated under Diagnostic Codes 5235 through 5243 in the General Formula for Diseases and Injuries of the Spine (General Formula). The Board notes that the Veteran is diagnosed with degenerative disc disease as the result of the natural progression of his lumbar spine disability. The Veteran’s service-connected lumbar spine disability is currently evaluated under Diagnostic Code 5237. Back disabilities rated under Diagnostic Code 5243 and the Incapacitating Episodes formula require “incapacitating episodes” of various durations. An "incapacitating episode" for purposes of totaling the cumulative time is defined as "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, Incapacitating Episodes Formula. The Veteran indicates that he has had to stay in bed to recover from his lower back pain for up to 40 days per year at times during the appeal period. See April 2014 Letter. The Board has considered the Veteran’s lay statements and notes that he is competent to provide evidence of his experiences, including his symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, while VA treatment records show the Veteran was prescribed relative rest on at least two occasions, treatment records do not indicate the Veteran was prescribed bed rest by any physician. Diagnostic Code 5243 and the Incapacitating Episodes formula are inapplicable. Finally, the Board notes that disabilities falling under Diagnostic Codes 5237 and 5242 are evaluated using the same criteria. See General Formula for Diseases and Injuries of the Spine (General Formula). Whether the Veteran’s disability is rated under code 5237 or 5242 will make no functional difference, as rating under one code or the other could not entitle the Veteran to a different rating. A. Entitlement to a rating higher than 20 percent. Diagnostic Code 5237 and the General Rating Formula for Diseases and Injuries of the Spine provide that a 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or 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. See 38 C.F.R. § 4.71a, DC 5243. A 40 percent evaluation is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent evaluation is assigned for unfavorable ankylosis of entire spine. Id. Notes appended to the rating formula for diseases and injuries of the spine specify that, 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 normal combined range of motion of the thoracolumbar spine is 240 degrees. Further, the term “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;” provided, however, that the aforementioned normal ranges of motion for each component of spinal motion, as recognized by VA, are the maximum that can be used for calculation of the combined range of motion, and each range of motion measurement is to be rounded to the nearest five degrees. 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. Here, the Veteran filed his claim in September 2010 and had VA examinations in February 2011, June 2013, and April 2019. The February 2011 examination found forward flexion to 55, 60, and 65 degrees with pain beginning at 50 degrees in all three trials, and a total range of motion of 190 degrees. The June 2013 examination found forward flexion to 60 degrees and a total range of motion of 195 degrees. In light of the Veteran’s April 2014 statement that his service-connected disorders had worsened since his last VA examination, the Board remanded for a new VA examination to assess the severity of the Veteran’s disability. The April 2019 examination found forward flexion to 50 degrees and a total range of motion of 190 degrees, with pain noted during flexion. Imaging studies found additional evidence of arthritis. The examiner found functional loss due to pain. No ankylosis of the spine was found. While the examination was not conducted during a flareup, the examiner noted that the exam is medically consistent with the Veteran's statements describing functional loss during flare-ups. Private treatment records and VA treatment records show repeated clinic visits for epidural steroid injections two to three times per year from September 2011 through at least April 2016. The April 2019 examination implies that the injections have resumed. The Veteran also treats his back pain with opioids. The current evaluation contemplates pain on motion. In addition, it is consistent with limitation of flexion, but flexion better than 30 degrees. In order to warrant a higher evaluation, flexion must be functionally limited to 30 degrees or less due to any DeLuca type factor. Because, the Veteran does not have incapacitation episodes as contemplated by regulation, such provision is not applicable. Additionally, no ankylosis was found. Here, the evidence establishes that he has pain on motion. However, all examinations have established that he retains flexion better than 30 degrees. Although we have considered the lay evidence, we find that the observations of skilled professionals are more probative and more credible than lay evidence as to the extent of his limitation of flexion. In sum, the 20 percent evaluation contemplates the degree of his impairment. Although he has pain, no factor limits flexion to 30 degrees or less. The preponderance of the evidence establishes that flexion is better than 30 degrees and a higher evaluation is not warranted. Given the above, the Board concludes that a disability rating in excess of 20 percent is not warranted for the lumbar spine disability at any point. 38 U.S.C. § 1155 (2016); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2018). The claim for a rating in excess of 20 percent is therefore denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morse, Department of Veterans Affairs The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.