Citation Nr: 20004865 Decision Date: 01/22/20 Archive Date: 01/21/20 DOCKET NO. 14-28 267 DATE: January 22, 2020 ORDER Entitlement to an initial disability rating in excess of 20 percent prior to December 5, 2016, and in excess of 40 percent thereafter, for lumbar spine degenerative disc disease (DDD) with intervertebral disc syndrome (IVDS), is denied. FINDINGS OF FACT 1. Prior to December 5, 2016, the Veteran’s lumbar spine DDD with IVDS is manifest by forward flexion of at least 30 degrees, at least 105 degrees of combined range of motion of the thoracolumbar spine, and guarding due to low back pain, but also a normal gait and spinal contour. 2. Since December 5, 2016, the Veteran’s lumbar spine DDD with IVDS is manifest by forward flexion limited to 30 degrees with no ankylosis or any incapacitating episodes within the last 12 months. CONCLUSIONS OF LAW 1. Prior to December 5, 2016, the criteria for a rating in excess of 20 percent for lumbar spine DDD with IVDS have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 2. Since December 5, 2016, the criteria for a rating in excess of 40 percent for lumbar spine DDD with IVDS have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from September 1980 to May 1991. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of a United States Department of Veterans Affairs (VA) Regional Office in San Diego, California. The issue on appeal was previously before the Board in May 2018 when it was remanded for additional evidentiary development, which has been substantially completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to an initial disability rating in excess of 20 percent prior to December 5, 2016, and in excess of 40 percent thereafter, for lumbar spine DDD with IVDS is denied. In October 2011, the Veteran filed his claim for an increased rating for his lumbar spine DDD with IVDS. In April 2014, the Veteran contended that he is entitled to a 100 percent disability rating. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.   When deciding the propriety of an assigned initial evaluation, consideration of the medical evidence since the effective date of the award of service connection. VA adjudicators must consider whether to assign different ratings at different times, or “staged” ratings, during the rating period to compensate a veteran for times when the disability may have been more severe than at others. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptoms for one condition is not the same as the symptoms of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Where there is a question as to which of two evaluations to assign, the higher evaluation will be, if the disability more closely matches the criteria for that rating. 38 C.F.R. § 4.7. When considering severity, it is essential to consider the veteran’s relevant medical history so that a rating may accurately reflect the disability. 38 C.F.R. §§ 4.1, 4.2, 4.41; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The Veteran’s lumbar spine DDD with IVDS is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243 for IVDS. Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS 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 IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, 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. Id. at Note 1. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine 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. A 20 percent rating is warranted 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 rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5.   When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. Thirty-eight C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). 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). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. His May 2019 VA examination found “no objective evidence of pain when the spine is in a non-weight bearing position at rest.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.   INTERVERTEBRAL DISC SYNDROME RATING CRITERIA The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for IVDS at any time during the pendency of his claim based on the Formulas for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. A January 2013 VA examination showed incapacitating episodes lasting between one and two weeks in the previous 12 months, warranting at most a 10 percent rating under the Formula for Rating IVDS. August 2015 and August 2016 VA examination reports reflected no incapacitating episodes within the previous 12 months. The December 5, 2016 Back Conditions Disability Benefits Questionnaire (DBQ) reflected that the Veteran had had incapacitating episodes lasting between two and four weeks within the previous 12 months, warranting at most a 20 percent rating under the IVDS Formula. The February 2017 and May 2019 VA examination reports again found that, while the Veteran did have an IVDS diagnosis, he did not have any incapacitating episodes within the previous 12 months. For the Veteran to warrant the next higher rating of 40 percent under the Formula for Rating IVDS prior to December 5, 2016, the evidence must establish the disability is productive of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks within a 12-month period. The VA examinations and private DBQ reports are all given substantial weight. The medical evidence of record establishes, at most, two to four weeks of incapacitation within any 12-month period. Therefore, a rating in excess of 20 percent is not warranted under the IVDS Formula. However, the Board’s analysis does not stop here. The Board must also evaluate the back condition under the General Rating Criteria.   GENERAL RATING CRITERIA The preponderance of the evidence is also against a rating in excess of 20 percent prior to December 5, 2016, or in excess of 40 percent thereafter, for lumbar spine DDD when it is evaluated under the General Rating Formula for Diseases and Injuries of the Spine. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, reduced ability to bend at the waist, and difficulty with prolonged sitting. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he had severe, daily back pain would not result in limitation of motion more nearly matching a limitation of forward flexion to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Prior to December 5, 2016 Prior to December 5, 2016, the Veteran has had multiple VA examinations during the appeal period and submitted private medical opinions using VA DBQ forms, but none supported a disability rating higher than 20 percent under the General Rating Formula. October 2011 and August 2015 VA examination reports showed that the Veteran was limited to 40 degrees of forward flexion, with at least 120 degrees combined range of motion of his lumbar spine. A January 2013 VA examination showed 85 degrees of forward flexion and 205 degrees combined. He had “normal” spine contour and gait. He had no guarding or muscle spasms. The examiner opined that the “impact of the thoracolumbar spine condition on the claimant’s ability to work is that he cannot do any activities that can cause back pain. No prolong[ed] standing, walking, or sitting. No lifting, pushing, or pulling > 10 lbs.” The August 2015 VA examiner, however, had found no ankylosis or functional impact on his ability to work. An unsigned and partial Back Conditions DBQ submitted in June 2016 with July and August 2014 private orthopedic treatment notes showed 30 degrees of forward flexion, 105 degrees combined, with no additional functional loss with repetitive use. This report also showed an “abnormal” gait. An August 2016 VA examination report showed the Veteran was limited to 60 degrees of forward flexion and 170 degrees combined. He had pain with motion in any direction, but no functional loss from the pain, no ankylosis, and no spasms. He did have guarding due to low back pain; however, this did not result in an abnormal gait or spinal contour. Review of the clinical records reflect continued complaints of and treatment for the Veteran’s back condition. In October 2011 and 2013, the Veteran's private doctor opined that the recurrent back pain was a “chronic problem that will continue to worsen with age.” November 2011 and January 2013 VA lumbosacral imaging, however, was “negative.” November 2012 military hospital lumbar imaging showed L3-5 desiccation with “mild” decrease in disk height, “mild” annular bulge L3-4, and “small” right intra-foraminal disk protrusion L4-5. In December 2012, October 2013, May and August 2014, February and July 2015, and March and September 2016, the Veteran had private back injections. In July 2014, private “range of motion testing, comparing his lumber spine range of motion to normal values, . . . displayed losses of 65% for lumbar flexion” (leaving 31.5 degrees of forward flexion remaining) and was “self-limited due to pain in his lumbar spine.” August 2014 private lumbar spine imaging showed “facet arthritis,” but was “otherwise negative.” Between August 2015 and January 2016, the Veteran received private physical therapy. September 2015 private imaging showed “mild” degenerative changes. In November 2016, the Social Security Administration denied the Veteran disability insurance benefits, a claim based in part on a “back injury,” because he was at the time engaged in “substantial gainful activity” and, therefore, he did not meet that agency’s statutory definition of disability. This is not binding on the VA. For the Veteran to warrant the next higher rating of 40 percent the evidence must establish forward flexion limited to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine or greater levels of restriction. The VA examinations, private DBQ reports, and the Veteran’s lay statements are all given great probative weight except for the unsigned and undated DBQ submitted in June 2016, which is given little weight. With no signature, it is not possible to evaluate the level of training, education, or experience of its author. Cox v. Nicholson, 20 Vet. App. 563, 568-69 (2007). The medical evidence of record otherwise establishes that the Veteran's forward flexion was at least 40 degrees, and generally higher, and this DBQ marks an aberration when considering the overall disability picture from this period. There was no evidence of ankylosis at any point. As the evidence does not more closely match a consistent limitation of motion of forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine, a rating in excess of 20 percent prior to December 5, 2016 is not warranted. Since December 5, 2016 Since December 5, 2016, the Veteran has had additional VA examinations and submitted another private medical opinion using the VA DBQ form, but none supported a disability rating higher than 40 percent under the General Rating Formula. A December 5, 2016 Back Conditions DBQ form showed the Veteran’s lumbar spine was limited to 30 degrees of initial forward flexion and 15 degrees after three repetitions and during flare ups, meeting the Rating Schedule requirements for a 40 percent disability rating. The December 2016 DBQ also showed an abnormal gait due to pain-related guarding, “4/5” muscle strength, but did not record any ankylosis. The examiner opined that he had functional “difficulty with prolonged standing and walking as well as bending, twisting, lifting, climbing.” In February 2017, the VA examiner found the Veteran’s forward flexion of his lumbar spine limited to 80 degrees with no additional functional loss after three repetitions, repeated use over time, or during flare ups. In May 2019, the VA examiner found the Veteran’s forward flexion of his lumbar spine limited to 60 degrees after three repetitions. Imaging showed “minimal” multilevel degenerative disc disease. The May 2019 examiner further noted, “After review of the Veteran’s records including the order request, DBQ, physical exam, reported history and subjective complaints, relevant evidence of record and using my medical knowledge and expertise, I have no basis to offer additional losses of function or motion with repeated use over time” or “during a flare up.” The February 2017 examiner noted pain with motion and the May 2019 examiner noted lumbar pain on forward flexion on examination, but neither found this resulted in or caused any additional functional loss. Neither the February 2017 nor the May 2019 exams were conducted during a flare up.   Review of the clinical records reflect continued complaints of and treatment for the Veteran’s back condition. In February and March 2017, he received steroid injections in his right sacroiliac (SI) joint. He reported “40%” improvement in June 2017. In November and December 2017, his private orthopedist recommended physical therapy and evaluation for further “possible” injections once he finished his therapy. In June 2018, the Veteran was fitted with a lumbar sacral corset by a VA orthotist. In December 2018, the Veteran reported to a VA psychologist and a nurse that his back pain “significantly” interfered with his activities of daily living. In January 2019, his private chiropractor reported the “large improvement that [he] has noted is that radiating pain into his left thigh has stopped. It was a daily experience, but he has not felt it for the last 4 weeks.” The Veteran also reported to his chiropractor less pain in his low back as compared to December 2018. In January 2019, he had more right SI joint injections, reporting “30%” improvement. In February 2019, he had lumbar facet injections, reporting “some” benefit. Physical examination showed “normal” lumbar spine flexion. Regarding neurological impairment, the Veteran has already been granted service connection for IVDS of his right and left leg sciatic nerves. These issues were last adjudicated in a separate August 2015 rating decision. Since September 2011, the VA has assigned a 10 percent disability rating for each leg for IVDS of his sciatic nerves associated with his back condition. Review of the clinical records reflect continued complaints of and treatment for the Veteran’s back-related neurological symptoms. November 2012 treatment notes showed no neurological deficits. July 2014 left leg electromyography (EMG) was “normal,” but showed radiculopathy in the right. An August 2015 VA examiner report noted no other peripheral nerve conditions. An August 2016 VA examination confirmed these were “active” diagnoses. December 2016 private EMG showed evidence “suggestive of subtle L4-5” radiculopathy. In February 2017, a VA examiner found the “pain of IVDS of the sciatic nerve both lower extremities” or radiculopathy “causing tingling, numbness and pain worst when bending and on straight leg raising.” The lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. For the Veteran to warrant the next higher rating of 50 percent the evidence must establish unfavorable ankylosis of the entire thoracolumbar spine. The VA examinations and private DBQ reports are all given substantial weight, except as noted above. There was no evidence of ankylosis. As the evidence does not establish any ankylosis of the thoracolumbar spine, a rating in excess of 40 percent since December 5, 2016 is not warranted. The Board must consider all the evidence of record, to include lay statements. 38 U.S.C. § § 5107 (b), 7104(a); 38 C.F.R. § 3.303(a). At his various VA examinations throughout the appeal period, the Veteran reported moderate back pain that traveled to his back side and thighs, limited walking, spasms, leg and feet weakness, and stiffness in the mornings. He is competent to report observable symptoms and the Board gives his lay statements substantial weight. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board also acknowledges the Veteran’s belief that his symptoms are severe enough to warrant a higher rating. However, disability ratings are made by applying a schedule of ratings which is based on average impairing of earning capacity as determined by the clinical medical evidence of record. Therefore, the Board finds that the medical evidence of record, which included the Veteran’s lay statements, is the most probative evidence of record. The preponderance of the evidence is against the Veteran’s claim for a rating higher than 20 percent for lumbar spine DDD with IVDS prior to December 5, 2016, and higher than 40 percent since. In denying increased ratings, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James Hekel, 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.