Citation Nr: 20002159 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 14-19 841A DATE: January 9, 2020 ORDER Entitlement to a disability rating in excess of 10 percent, prior to September 27, 2019, for degenerative changes of the lumbar spine with annular disc bulges at L-4L4 and L5-S1 (hereinafter lumbar spine disability) is denied. Entitlement to a disability rating in excess of 20 percent, since September 27, 2019, for a lumbar spine disability is denied. FINDINGS OF FACT 1. Prior to September 27, 2019, the preponderance of the evidence is against a finding that the Veteran’s lumbar spine disability was manifested by forward flexion of the thoracolumbar spine less than 60 degrees; or a combined range of motion of the thoracolumbar spine less 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. 2. Since September 27, 2019, the preponderance of the evidence is against a finding that the Veteran’s lumbar spine disability has been manifested by unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. CONCLUSION OF LAW 1. The criteria for a disability rating in excess of 10 percent, prior to September 27, 2019, for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 2. The criteria for a disability rating in excess of 20 percent, since September 27, 2019, for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from May 1989 to February 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in August 2012 by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in March 2018 and was remanded for further development. It is again before the Board for further appellate review. In October 2019, prior to the case returning to the Board for further review, the RO granted an increase for the Veteran’s spine disability to 20 percent effective September 27, 2019. A claimant will generally be presumed to be seeking the maximum benefits allowed by law and regulations, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded, or until the Veteran withdraws the claim. AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue of entitlement to a higher initial rating for the Veteran’s spine disability, remains on appeal. 1. Entitlement to a disability rating in excess of 10 percent, prior to September 27, 2019, for lumbar spine disability. 2. Entitlement to a disability rating in excess of 20 percent, since September 27, 2019, for lumbar spine disability. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine for Diagnostic Codes 5235 to 5243, unless 5243 is used under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Ratings under the General Rating Formula for Diseases and Injuries of the Spine 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. 38 C.F.R. § 4.71a. The disabilities of the spine that are rated under the General Rating Formula for Diseases and Injuries of the Spine include vertebral fracture or dislocation (Diagnostic Code 5235), sacroiliac injury and weakness (Diagnostic Code 5236), lumbosacral or cervical strain (Diagnostic Code 5237), spinal stenosis (Diagnostic Code 5238), unfavorable or segmental instability (Diagnostic Code 5239), ankylosing spondylitis (Diagnostic Code 5240), spinal fusion (Diagnostic Code 5241), and degenerative arthritis of the spine (Diagnostic Code 5242). Degenerative arthritis of the spine can also be rated using Diagnostic Code 5003. 38 C.F.R. § 4.71a. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or a 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 an abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or a 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. 38 C.F.R. § 4.71a. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or unfavorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 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 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. 38 C.F.R. § 4.71a, Plate V, General Rating Formula for Diseases and Injuries of the Spine, Note (2). The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (4). 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. Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (3). 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 (0 degrees) always represents favorable ankylosis. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (6). Diagnostic Code 5243 provides that intervertebral disc syndrome is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that a 10 percent rating is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted 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 is warranted with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243, 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 (IVDS) that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (2). Rating a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint. 38 C.F.R. §§ 4.45. 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. It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. When rating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran’s lumbar spine disability has been rated under Diagnostic Code 5242 for degenerative arthritis of the spine, as 10 percent prior to September 27, 2019, and 20 percent thereafter. The Board notes that the Veteran's claims file contains contemporaneous VA and private medical records for the lumbar spine disability throughout the period on appeal. However, on review of all the evidence of record, both lay and medical, the Board finds that, during the entire rating period on appeal, the Veteran's spine disability does not more nearly approximate a rating in excess of 10 percent prior to September 27, 2019, nor does it more nearly approximate a rating in excess of 20 percent rating as of September 27, 2019. Prior to September 27, 2019, the medical records do not show that the Veteran's degenerative spine disability manifested with forward flexion of the thoracolumbar less than 60 degrees; or a combined range of motion of the thoracolumbar spine less 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. As of September 27, 2019, the medical evidence does not show that the Veteran's lumbar spine disability manifested with unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine throughout the entire period of appeal. Initially, the Board notes that there is no medical evidence of ankylosis of the thoracolumbar spine during the course of this appeal. Additionally, IVDS of the thoracolumbar spine was present in the September 2019 VA examination, however, the Veteran has not had any acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months prior to the exam. Thus, a higher rating cannot be assigned on the basis of ankylosis or IVDS. On VA examination in July 2012, the Veteran was fully ambulatory with a normal gait and no acute distress. Upon range of motion testing, the Veteran had initial forward flexion of the thoracolumbar spine to 90 degrees and extension was to 15 degrees. Right lateral flexion was to 30 degrees and left lateral flexion was to 30 degrees. Right lateral rotation was to 30 degrees and left lateral rotation was to 30 degrees. Repetitive range of motion testing did not reveal any increase in pain and no fatigue, weakness, lack of endurance or incoordination was noted. Additionally, there was no evidence of muscle atrophy or hypertrophy. On VA examination in January 2016, the Veteran had initial forward flexion of the thoracolumbar spine to 90 degrees and extension was to 20 degrees. Right lateral flexion was to 25 degrees, and left lateral flexion was to 25 degrees with no objective evidence of painful motion. Right lateral rotation was to 20 degrees, and left lateral rotation was to 20 degrees or greater with no objective evidence of painful motion. The range of motion contributed to a functional loss in that the Veteran had a mild loss of flexibility. However, no additional loss of function or range of motion was found after repetitive-use testing. The Veteran did not have any neurologic abnormalities related to his spine disability, radicular pain, or IVDS of the thoracolumbar spine. On VA examination in September 2019, the Veteran had initial forward flexion of the thoracolumbar spine to 80 degrees and extension was to 10 degrees. Right lateral flexion was to 20 degrees and left lateral flexion was to 20 degrees. Right lateral rotation was to 10 degrees and lateral rotation was to 10 degrees. Pain was noted on all range of motion testing. The range of motion contributed to a functional loss in that the Veteran had pain on movement in addition to difficulty with prolonged sitting, standing, walking, and lifting. There was no pain reported with weight bearing, however, the Veteran had guarding of the thoracolumbar spine resulting in an abnormal gait or spine contour. The Board finds that, during the period on appeal, prior to September 27, 2019, the Veteran's spine disability has warranted a 10 percent rating. During this period, medical records confirm that the Veteran's forward flexion was, at worst, to 80 degrees, which is greater than 60 degrees. The Veteran's combined range of motion of the thoracolumbar spine was, at worst, to 150 degrees which is greater than 120 degrees but not greater than 235 degrees. Lastly, the Veteran's spine disability did not result in an abnormal gait. Per Diagnostic Code 5242, this level of impairment is consistent with a 10 percent disability evaluation. A higher rating is not warranted for the Veteran's back disability prior to September 27, 2019, because the evidence of record does not show that the Veteran's spine disability manifested with forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or a 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 during this period. Per Diagnostic Code 5242, this level of impairment is needed for a 20 percent disability evaluation The Board finds that, effective September 27, 2019, the Veteran's lumbar spine disability has warranted a 20 percent rating. During this period, medical records confirm that the Veteran had guarding of the thoracolumbar spine resulting in abnormal gait or abnormal spine contour. Per Diagnostic Code 5242, this level of impairment is consistent with a 20 percent disability evaluation. A higher evaluation, of 30 percent, is not warranted for the Veteran’s degenerative arthritis of the spine during this period because the evidence of record does not show forward flexion of the cervical spine to 150 degrees or less; or favorable ankylosis of the entire cervical spine. Per Diagnostic Code 5242, this level of impairment is needed for a 30 percent disability evaluation. A higher evaluation, of 40 percent, is not warranted for degenerative arthritis of the spine during this period because the evidence of record does not show forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire cervical spine. Per Diagnostic Code 5242, this level of impairment is needed for a 40 percent disability evaluation. The Board has also considered whether a higher rating could be assigned under the intervertebral disc syndrome (IVDS) formula based on incapacitating episodes. However, to date, the Veteran has not been shown to have incapacitating episodes of intervertebral disc syndrome requiring bed rest prescribed by a physician and treatment by a physician of a total duration of at least two weeks but less than four weeks during a 12-month period. Accordingly, the Board finds that a rating in excess of 10 percent for the Veteran's lumbar spine disability, prior to September 27, 2019, and in excess of 20 percent thereafter is not warranted. The Board finds that the preponderance of the evidence is against the claim for increase and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49; 38 U.S.C. § 5107; 38 C.F.R. § 3.102. William Yates Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. K. Hall, Associate Counsel 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.