Citation Nr: 20004909 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 14-39 107 DATE: January 23, 2020 ORDER Entitlement to an evaluation in excess of 10 percent for degenerative disc disease L4-5 and L5-S1 is denied. FINDINGS OF FACT 1. The Veteran’s low back disability with degenerative disc disease is manifested by complaints of ongoing pain, difficulty standing, walking and sitting for extended periods. 2. The Veteran’s range of motion is not greater than 30 degrees but not greater than 60 degrees. 3. The Veteran’s combined range of motion of the thoracolumbar spine is not greater than 120 degrees; nor is there muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 4. The evidence of record does not show incapacitating episodes having a total duration of 2 to 4 weeks within a 12-month period with bed rest ordered by a physician. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for degenerative disc disease L4-5 and L5-S1 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the U.S. Air Force from July 1984 to March 1988, active duty for training from August 1988 to February 1989, active duty from May 1997 to September 1997 and September 2001 to June 2004 with additional service in the Air National Guard from April 2000 to April 2005. This case comes before the Board of Veterans’ Appeals (the Board) on appeal from a December 2011 rating decision of the Decatur, Georgia Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction currently resides at the VA RO in St. Petersburg, Florida. In September 2017, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims folder. In a February 2018 Board decision, this matter was remanded to the RO for further development in order to obtain any outstanding treatment records, and to afford the Veteran a VA examination to assess the current nature, extent, and severity of his back condition. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Board is satisfied that there has been substantial compliance with the Board’s remand directives. The matter has been properly returned for to the Board for appellate consideration and the Board is satisfied that there has been substantial compliance with the Board remand. Thus, no further action is required. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, with regard to the Veteran’s claims. Increased Ratings The Veteran currently has a rating of 10 percent for degenerative disc disease L4-5 and L5-S1 and contends that he is entitled to a higher rating. The Veteran also has been granted service connection for radiculopathy of the left lower extremity associated with the low back disability and assigned a 10 percent rating, effective October 3, 2014. Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. See 38 C.F.R. § 4.7. Staged ratings are appropriate if the factual findings show distinct time periods in which the service-connected disability exhibited symptoms warranting different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Here, the disability has not significantly changed, and a uniform evaluation is warranted. In evaluating disabilities of the musculoskeletal system, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40. Inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement. See 38 C.F.R. § 4.45. When assigning a disability rating, it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on motion. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Under 38 C.F.R. § 4.59, with any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to the affected joints. The intent of the rating schedule is to recognize painful motion with joint or particular 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. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Consideration of 38 C.F.R. § 4.59 is not limited to cases involving arthritis, and a rating based on painful motion of a joint, regardless of whether the painful motion stemmed from joint or periarticular pathology, is possible. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination and endurance to constitute functional loss. Although pain may cause functional loss, pain itself does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. 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 rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The prohibition of “pyramiding” pursuant to 38 C.F.R. § 4.14 does not preclude consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. Diagnostic Code (DC) 5010 (traumatic arthritis) directs that arthritis be rated under DC 5003 (degenerative arthritis), which states that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major or minor joint groups will warrant a 10 percent rating, and two or more major or minor joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The 10 percent and 20 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. See 38 C.F.R. § 4.71a, DC 5003, Note 1. The General Rating Formula for Diseases and Injuries of the Spine provides that, 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, 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. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. An evaluation of 20 percent 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 is 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. An evaluation of 40 percent is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. An evaluation of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. An evaluation of 100 percent requires unfavorable ankylosis of the entire spine. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that an evaluation of 10 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. An evaluation of 20 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. An evaluation of 40 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Finally, an evaluation of 60 percent requires intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a, DC 5243. For the purposes of evaluations under DC 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. See 38 C.F.R. § 4.71a, Intervertebral Disc Syndrome, Note (1). Separate ratings for neurological manifestations may be warranted under 38 C.F.R. § 4.124a if supported by objective medical evidence. It is the Board’s responsibility to evaluate the assembled evidence. See 38 U.S.C. § 7104 (a). All information and lay and medical evidence of record in a case will be considered. It is VA’s defined and consistently applied policy to administer the law under a broad interpretation that is consistent with the facts shown in every case. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Analysis The Veteran contends that he is entitled to a rating in excess of 10 percent for this back disability under DC 5243. The current evaluation contemplates pain on motion. The Veteran filed his initial claim for service connection for IVDS in June 2004. Service connection was granted with an effective date of June 27, 2004. The Veteran subsequently filed a claim for an increased rating in August 2010 and was provided a VA examination in September 2011. The VA examiner performed an in-person examination and reviewed the Veteran’s medical records. The Veteran reported that he was employed full time as an electrician but had lost 12 weeks of time at work because of his back although he also reported episodes every three to four months lasting for three to 7 days. At the examination, the Veteran reported that he felt a worsening of symptoms, and flare ups every 2 to 4 months. Upon examination, the Veteran’s gait and posture were found to be normal. The Veteran’s forward flexion was to 80 degrees, extension was to 30 degrees, and bilateral flexion to 30 degrees. Pain was noted on flexion and extension. No ankylosis was found. In regard to incapacitating episodes, the VA examiner indicated three incapacitating episodes in the last year but noted that the episodes required a doctor visit and prescription for oral medication but not physician ordered bed rest. See September 2011 VA examination. The Veteran’s claim was denied, and the Veteran filed a timely notice of disagreement and substantive appeal (VA Form 9). In the Veteran’s Form 9, he requested a hearing before the Board. The Veteran also submitted an office visit note from the Pain Relief Centers, dated May 2014. The Veteran’s private physician indicated that a physical examination was conducted, and the Veteran’s lay statements were taken into consideration. The private physician found that the Veteran’s flexion was to 80 degrees and extension was to 5 degrees. The private physician did not find ankylosis, or any incapacitating episodes. See October 2014 Medical Treatment Record - Non-Government Facility, pp. 1-5. In addition, the Veteran submitted reports from West Park Surgery Center, Rose Radiology and Saint Pete MRI, which described the Veteran’s treatment and the current status of his spine. Id., see also September 2010 Medical Treatment Record – Non-Government Facility. The Veteran subsequently testified during a Board hearing in September 2017. At the hearing, the Veteran testified as to a worsening of range of motion, and that he felt that he became incapacitated for three days, three times a year, based on his own self-diagnosis. He reported hospital care for several days during a flare-up of back pain. See September 2017 Hearing Transcript, p. 4. Records show that he was treated at a VA facility for 3 days in October and November 2017. Following treatment, he was advised on exercise and loss of weight. Based on the Veteran’s testimony, the Board issued a decision in February 2018, in which the Veteran’s case was remanded for further development. The Veteran was provided a VA examination in April 2019. The Veteran reported that he had another pain flare-up and was treated at a VA emergency room in March 2019. The VA examiner performed an in-person examination, reviewed the Veteran’s medical records and considered the Veteran’s lay statements. At the examination, the VA examiner found that forward flexion was to 70 degrees, extension was to 30 degrees, bilateral flexion was to 30 degrees, and bilateral rotation was to 30 degrees. The combined range of motion was 220 degrees. There was no additional loss of function on repeated use testing during the examination. The examiner noted that on flare ups, the only change was that forward flexion was to 65 degrees, and that the Veteran was limited in prolonged sitting and walking. Muscle strength testing and sensory exam were normal. No ankylosis was found. In addition to the VA medical examinations, and the private physician reports, the Board has considered the Veteran’s VA treatment records. The Board notes that the Veteran’s treatment records lend probative weight to the Veteran’s lay statements concerning pain and discomfort. However, the VA treatment records do not contain medical evidence in regard to the Veteran’s flexion and extension. Furthermore, in regard to incapacitating episodes, an April 2019 Physical Therapy Consultation Note stated that the Veteran was advised against prolonged periods of bed rest, and that “exercise/movement is important for recovery.” See May 2019 CAPRI, p. 11. As such, the Board finds that Based on the lay and medical evidence of record, the Board finds that the Veteran’s low back disability does not more nearly approximate the criteria warranted for an increased rating for the spinal disease or the associated left lower extremity radiculopathy. The Board notes the Veteran’s contentions regarding his increased pain which is exacerbated by bending over, lifting objects, and performing tasks such as tying his shoes and his reports of several flare up pain episodes each year and the documented treatment once in 2017 and the reported treatment in March 2019. See September 2017 Hearing Transcript. The Veteran is competent to testify to such lay observable symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, such lay evidence, even when accepted as accurate, does not establish a level of disability contemplated by a higher evaluation. The occasions of hospital care are widely separated and his episodes of self-care by lying down occur after extended sitting or inactivity which was contrary to the advice of clinicians. Further, the evidence of record shows that during the appellate period the Veteran’s range of motion did not meet the standard of greater than 30 degrees but not greater than 60 degrees. The combined range of motion of the thoracolumbar spine was not greater than 120 degrees; nor was there muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Finally, the evidence does not show incapacitating episodes having a total duration of 2 to 4 weeks within a 12-month period. As such, for this period of appeal, a rating in excess of 10 percent is not warranted. The preponderance of the evidence is against increased rating in excess of 20 percent prior for the Veteran’s service-connected low back disability. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Abels, 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.