Citation Nr: 20007484 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 07-21 583 DATE: January 29, 2020 ORDER Entitlement to an evaluation of 10 percent, but no higher, prior to July 24, 2006 for degenerative disc disease of the lumbosacral spine is granted. FINDING OF FACT Prior to July 24, 2006, the Veteran’s lumbar spine degenerative disc disease was manifested by painful motion, flexion to 90 degrees with combined range of motion 240 degrees, with no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. No diagnosis of intervertebral disc syndrome was provided. CONCLUSION OF LAW The criteria for an initial rating of 10 percent, but no higher, prior to July 24, 2006 for lumbar spine disability, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003-5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training (ACDUTRA) from February to June 1979 and active duty from March 1986 to August 2005. In July 2018, the Board denied the Veteran’s claim for entitlement to a compensable rating for the period before July 24, 2006 for the lumbar spine disability. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (CAVC); and in August 2019, the Secretary and the Veteran filed a Joint Motion for Partial Remand (JMPR) which was granted by the CAVC in an August 2019 Order. The parties to the JMPR determined that the Board failed to address whether a compensable rating was warranted for the lumbar spine disability under Diagnostic Code 5003 based on a March 2006 private examiner’s report as well as an August 2005 private examiner’s note. The case was remanded for the Board to readjudicate the issue accordingly. Increased rating Entitlement to a compensable rating prior to July 24, 2006 for lumbar spine disability The Veteran’s lumbar spine disability is currently assigned a non-compensable rating prior to July 24, 2006 under Diagnostic Code 5243. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (Diagnostic Codes 5235 to 5243). Ratings under the General Rating Formula 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. 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. When a veteran has intervertebral disc syndrome (IVDS), ratings can also be assigned based on the duration of incapacitating episodes (acute signs and symptoms due to 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. Separate ratings cannot be assigned based on the General Formula and the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. See id. Diagnostic Code 5242 refers to Diagnostic Code 5003. 38 C.F.R. § 4.71a. Diagnostic Code 5003 provides: 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 (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In the absence of limitation of motion, degenerative arthritis will warrant a 10 percent rating with x-ray evidence of involvement of two or more major joints or two or more minor joint groups. See id. “Structurally, [Diagnostic Code] 5003 is composed of three parts, each of which addresses how to evaluate arthritic pain in a different situation: (1) When it results in limitation of motion that is compensable under a [Diagnostic Code] that rates according to limitation of motion; (2) when it results in limitation of motion that is noncompensable under a [Diagnostic Code] that is applicable to the joint involved; and (3) when it does not result in limitation of motion.” See Mitchell v. Shinseki, 25 Vet. App. 32, 39 (2011). When evaluating the musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA may consider granting a higher rating in cases in which there is functional loss due to pain, weakness, excess fatigability or incoordination, assuming these factors are not already contemplated by the relevant rating criteria. Painful motion may be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in, and is rated at the same level as functional loss where motion is impeded. 38 C.F.R. §§ 4.40, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 205-206 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991); VAOPGCPREC 9-98. 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 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. 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. 38 C.F.R. § 4.59. Read together, Diagnostic Code 5003 and 38 C.F.R. § 4.59 state that painful motion of a major joint or groups caused by degenerative arthritis, where the arthritis is established by x-ray, is deemed to be limited motion and entitled to a minimum 10 percent rating per joint, combined under Diagnostic Code 5003, even though there is no actual limitation of motion. See Mitchell, 25 Vet. App. at 40. The Board notes that an August 2005 treatment note indicates that the Veteran’s thoracolumbar spine demonstrated tenderness on palpation over the paravertebral muscles. Additionally, at a March 2006 VA examination, the Veteran complained occasional stiffness and weakness in his back. The examination report states: Due to the Spine condition he has suffered from pain located at low back for 12 years. The pain occurs constantly. The pain travels to left leg. The characteristic of the pain is crushing in nature, aching in nature and sticking in nature. From 1 to 10 (10 being worst pain) the pain level is 9. The pain can be elicited by physical activity. The pain comes by itself. It is relieved by rest and the medication, MOBIC. At the time of pain, he can function with medication. ... From the above condition the functional impairment is difficulty with prolonged standing. On physical examination, the examiner found no muscle spasm, but tenderness on L2 to L5 spinous processes. There was no ankylosis of the spine. The range of motion of the lumbar spine was determined as follows: flexion 90 degrees; extension 30 degrees; right lateral flexion 30 degrees; left lateral flexion 30 degrees; right rotation 30 degrees; left rotation 30 degrees. The joint function was not limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. The examiner stated that without resorting to speculation, pain, fatigue, weakness, lack of endurance, or incoordination does not cause additional loss after repetitive use or flareups. The examiner found no signs of IVDS with chronic and permanent nerve root involvement. The x ray taken at the examination revealed degenerative arthritis, degenerative disc disease at L2 to L4. The medical treatment records for the appeal period show that the Veteran was assessed with chronic low back pain and received treatment for low back pain. The Board finds that an evaluation of 10 percent rating is warranted prior to July 24, 2006 under Diagnostic Codes 5003-5243. There is not, however, a basis to assign a higher rating for the appeal period. On the one hand, the medical evidence demonstrates that the Veteran’s degenerative disc disease of the lumbar spine, established by an x-ray, was productive of painful motion of the spine, though the limitation of motion caused by pain did not cause loss in range of motion sufficient enough to warrant a compensable rating under Diagnostic Code 5243. On the other, the evidence demonstrates that the flexion of his lumbar spine was limited to, at worst, 90 degrees with combined range of motion of 240 degrees. No muscle spasm was found. Moreover, the evidence does not show guarding severe enough to result in an abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Additionally, the Veteran did not have IVDS during the appeal period, and thus, Diagnostic Code 5243 is not applicable. Therefore, the Board finds the evidence of record warrants a 10 percent rating during the appeal period under Diagnostic Codes 5003-5242, but it does not warrant a rating higher than 10 percent for the Veteran’s lumbar spine disability at any time during the appeal period. As the preponderance of the evidence is against assignment of any higher rating for any time during the period on appeal, the benefit-of-the doubt doctrine is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. (Continued on the next page)   The Board has also considered whether the schedular evaluation is inadequate. The evidence does not reflect any unusual or otherwise exceptional symptoms. The primary symptoms of pain and limited motion are fully contemplated by the rating criteria. Irvin Cannaday Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. Taylor, 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.