Citation Nr: 20007650 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 18-03 358 DATE: January 29, 2020 ORDER An increased disability rating in excess of 40 percent for intervertebral disc syndrome (IVDS) with degenerative disc disease (DDD), lumbar spine L2-L3 with foramen narrowing L4-L5 (previously rated as DDD, lumbar spine L2 -L3 with foramen narrowing L4 -L5) (lower back disability), beginning January 30, 2018, is denied. An increased disability rating in excess of 20 percent for DDD, lumbar spine L2 -L3 with foramen narrowing L4 -L5, prior to January 30, 2018, is denied. FINDINGS OF FACT 1. From January 30, 2018 the Veteran’s lower back disability was manifested by severe limitation of motion of the lumbar spine; however, there was no evidence of IVDS with incapacitating episodes of 6 weeks or more during a 12-month period, or ankylosis of the entire thoracolumbar spine. 2. Prior to January 30, 2018 the Veteran’s lumbar spine DDD L2 -L3 with foramen narrowing L4 -L5, disability was manifested by forward flexion greater than 30 degrees but not greater than 60 degrees; but there was no evidence of ankylosis. 3. The Veteran was granted separate 20 percent compensable ratings, effective January 30, 2018, for his sciatic nerve radiculopathy associated with his IVDS with DDD lumbar spine L2-L3 with foramen narrowing L4-L5, disabilities in both his right and left lower extremities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for the Veteran’s IVDS with DDD, lumbar spine L2-L3 with foramen narrowing L4-L5, disability, beginning January 30, 2018, have not been met. 38 U.S.C. § §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.7, 4.71a, Diagnostic Code 5235 to 5243. 2. Prior to January 30, 2018, the criteria for a rating in excess of 20 percent for the Veteran’s DDD, lumbar spine L2 -L3 with foramen narrowing L4 -L5, disability, were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.7, 4.71a, Diagnostic Code 5235 to 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1973 to February 1976, from November 1990 to May 1991, and from April 1992 to August 1993. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which is the agency of original jurisdiction (AOJ). Increased Ratings The Veteran seeks an increased compensable rating for his service-connected lower back disability. The Veteran filed his initial claim for lower back conditions in May 2010, and in a July 2011 rating decision, he was granted service connection for his lower back condition and assigned a 20 percent compensable rating effective May 2010. The Veteran was provided notice of his rights but did not file an appeal and this decision became final. Thereafter, the Veteran filed a claim for an increased rating for his lower back condition in March 2016. The claim was denied in a May 2016 rating decision, but the Veteran’s 20 percent compensable rating was continued. This rating decision is the rating decision on appeal. When he filed his March 2016 claim for an increased rating, the Veteran's back disability, DDD, lumbar spine L2 - L3 with foramen narrowing L4 - L5, was rated as 20 percent disabling. Based on his January 2018 VA examination, his lower back disability compensable rating was increased to 40 percent, and he was awarded two separate 20 percent ratings for his lower right and left extremity sciatic nerve radiculopathy associated with his IVDS with DDD lumbar spine L2-L3 with foramen narrowing L4-L5, disabilities, all of which were effective January 30, 2018. These separate ratings were not appealed and are not before the Board. The Board now turns to determine if the Veteran is entitled to a higher compensable rating for his lower back condition, and if he is entitled to an earlier effective date for any rating increase given. Disability ratings are determined by application of the VA's Schedule for Rating Disabilities. 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 service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes (DCs). 38 C.F.R. § 4.27. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, analysis in this decision has therefore been undertaken with consideration of the possibility that different ratings may be warranted for different time periods as to the pending claims. The effective date for increased ratings will generally be the earliest date on which it is factually ascertainable that an increase in disability had occurred if the claim is received within 1 year from such date; otherwise, the effective date is the date of receipt of claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2). Despite having received an increased rating from the initial 20 percent rating, the Board must continue to review the matter as the Veteran is presumed to be seeking the maximum possible evaluation. AB v. Brown, 6 Vet. App. 35, 38 (1993) (on a claim for an original or an increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Rating Criteria - Thoracolumbar Spine Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, see below). 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. 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 and the normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a. Note (2), See also Plate V, 38 C.F.R. § 4.71a. Further, all measured ranges of motion should be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, Note (4). The separate disability ratings are based on the following: A 10 percent disability rating 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 disability rating is assigned 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 disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Ankylosis is a condition in which an entire spinal segment is immobile and fixed in position. Unfavorable ankylosis exists where the fixation is in flexion or extension, and the ankylosis results in one 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; and/or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) is considered favorable ankylosis. Id, Note (5). Intervertebral disc syndrome (IVDS) is evaluated either under the General Rating Formula for Diseases and Injuries of the Spine, see above, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, 38 C.F.R. § 4.71a, Diagnostic Code 5243, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Diagnostic Code 5243, warrants a maximum 60 percent rating when rating based on incapacitating episodes, and such is assigned when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is assigned for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 20 percent disability rating for is assigned for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. And finally, a 10 percent disability rating is assigned for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Note (1) provides that for the purposes of evaluations 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. Note (2) provides that 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. "Chronic orthopedic and neurological manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Id. It should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Analysis of the record The Veteran was given a VA Examination in May 2016. The examiner confirmed the diagnosis of DDD of the lumbar spine with anterior spondylosis, degenerative arthritis, and chronic low back strain. The Veteran reported functional loss due to the back conditions as pain and limitation of motion but that he did not experience flare-ups. Range of motion (ROM) testing showed forward flexion was to 80 degrees (normal is 90 degrees), extension to 25 degrees (normal is 30 degrees), right lateral flexion to 20 degrees (normal is 30 degrees), left lateral flexion to 15 degrees (normal is 30 degrees), right lateral rotation to 20 degrees (normal is 30 degrees), and left lateral rotation to 15 degrees (normal is 30 degrees). The overall combined range of motion was 175 (normal is 240 degrees). There was evidence of painful motion and pain on weight bearing. No objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine was identified. There was no additional loss of range of motion following repetitive motion. Pain, weakness, and lack of endurance were noted as factors which significantly limited functional ability with repeated use over a period of time. There is evidence of muscle spasms not resulting in an abnormal gait or abnormal spinal contour and no evidence of guarding. The examination was negative for pain or symptoms of radiculopathy, ankylosis, IVDS, and any other neurologic abnormalities. The Veteran reported occasional use of braces, and constant use of a cane. The Veteran did report decreased sensations, including vibration, over both lower legs and feet, which the examiner questioned could be caused by diabetic neuropathy, though no actual diagnosis or evidence to support that hypothesis was identified. In his January 2018 VA Form 9 – “Appeal to Board of Veteran's Appeals”, the Veteran complained that previous VA examiner did not take not account for his level of pain and stated that he needs to use a cane to walk up and down stairs because he is not stable enough on occasions and feels he could fall. He also asserted that he has a burning and tingling in both of his legs with sharp pain going through his knees which “almost take [sic] me to the ground.” The Veteran was thereafter afforded another VA examination in January 2018 where the examiner noted the diagnoses of IVDS with degenerative disc disease (DDD), lumbar spine L2-L3 with Foramen Narrowing L4-L5 (January 2018) (previously rated as DDD, lumbar spine L2 -L3 with foramen narrowing L4 -L5 (May 2010).), Sciatic Lumbar Radiculopathy Right Lower Extremity (January 2018), and Sciatic Lumbar Radiculopathy Left Lower Extremity (January 2018) The Veteran reported chronic back pain, stiffness, aching and throbbing pain in his back. He rated his pain to average as 5 to 6 on a 10-point scale. He endorsed stabbing pain to the point of difficulty sleeping. He reported difficulty sitting, standing, or walking for long periods of time without rest, the need to ambulate with a cane and difficulty with any bending or twisting. Range of motion (ROM) testing revealed forward flexion to 40 degrees; extension to 5 degrees; right and left lateral flexion to 10 degrees. The examiner indicated that with repeated use over time, ROM would decrease to 30 degrees of forward flexion, 5 degrees of extension, 10 degrees of left and right lateral flexion, and 15 degrees of left and right lateral rotation. During flare-ups, your estimated ROM would be 25 degrees of forward flexion, 5 degrees of extension, 10 degrees of left and right lateral flexion, and 15 degrees of left and right lateral rotation. The examiner noted that the Veteran's abnormal ROM contributed to his functional loss. There was objective evidence of pain with weight bearing and localized tenderness. The Veteran was unable to complete repetitive use testing. There was evidence of severe radiculopathy in the right lower extremity. There was no evidence of ankylosis. The examiner noted that the Veteran did not have any other neurologic abnormalities or findings related to a thoracolumbar spine (back) condition such as bowel or bladder problem/pathologic reflexes. Muscle spasms which resulted in an antalgic unsteady gait were also noted. The Veteran had a diagnosis of IVDS, but no episodes of symptoms that required doctor ordered bedrest. The examiner noted back muscle spasms which resulted in an antalgic unsteady gait. The Veteran was diagnosed with IVDS and sciatic lumbar radiculopathy of bilateral lower extremities, but the examiner indicated that he did not have incapacitating episodes of symptoms that required doctor ordered bedrest. The examiner provided a clarifying VA addendum opinion in February 2018 in which he opined that it is likely the Veteran has both lumbar radiculopathy and diabetic peripheral neuropathy of lower extremities contributing to the sciatic nerve neuropathy. He further opined that the radicular pain shooting down side of legs was due to lumbar radiculopathy, the numbness and tingling of lower legs and feet was likely due to both the lumbar radiculopathy and diabetic peripheral neuropathy, and it would be difficulty to delineate how much is due to each condition. In comparing the May 2016 VA examination in which the Veteran was diagnosed with DDD of the lumbar spine and degenerative arthritis, the examiner stated that there likely has been some progression since the earlier examination with increased severity of symptoms and likely increased degeneration as both DDD and degenerative arthritis are progressive conditions. Despite no such finding in the May 2016 examination, the January 2018 examiner opined that lumbar radiculopathy was likely present in 2016 and that the negative results for straight leg raise testing may have been why the lumbar radiculopathy was not diagnosed during that exam. The 2018 examiner acknowledged that no other evidence of uncontrolled diabetes or diabetic neuropathy were found in the medical records. There are no private medical records for the period of this appeal which were either identified or provided by the Veteran. In his March 2016 claim for an increased rating, the Veteran states that All evidence for this claim is with the VAMC Alexandria, VA. The Veteran’s treatment records from VAMC Alexandria to not contain any notes of back treatment during the appeal period other than the records containing copies of his VA examinations. Based on the January 2018 VA examination results, the Veteran’s lower back disability was recharacterized to provide the Veteran with the highest rating permissible with the rating now described as intervertebral disc syndrome with degenerative disc disease, lumbar spine L2-L3 with Foramen Narrowing L4-L5, where it was previously rated as degenerative disc disease, lumbar spine L2 -L3 with foramen narrowing L4 -L5. The Veteran was also provided two new and separate 20 percent compensable ratings for the sciatic nerve pain he experienced in both his left and right lower extremities and were granted to address the Veterans symptoms related to his lower extremity nerve conditions. 1. An increased disability rating in excess of 40 percent for lower back disability Upon review of the evidence of record, the Board finds that a rating in excess of 40 percent for the Veteran’s lower back disability is not warranted for any time during the appeal period. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Diagnostic Code 5243, allows a maximum 60 percent rating when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months and a 40 percent rating for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. The January 2018 VA examination showed flexion to 40 degrees. At no point during the entire appeal period did the Veteran exhibit unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes. Therefore, a higher rating is not warranted. The Board has also considered whether factors including functional impairment and pain as addressed under 38 C.F.R. §§ 4.40 and 4.45 would warrant higher ratings for the Veteran’s lumbar spine disability prior to January 2018. However, the VA examinations documented the Veteran’s limitations due to pain or repetitive use testing, and those limitations are reflected in the currently assigned rating. The Board also notes that a higher rating is not available under the formula for rating IVDS based on incapacitating episodes as there is no evidence of any incapacitating episodes which required bed rest prescribed by a physician and treatment by a physician during the appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5243. With regard to neurologic impairment, the Board notes that the Veteran is already being compensated separately for radiculopathy in each of the left and right lower extremities, effective January 2018. The preponderance of the evidence is against the Veteran’s claim for an increased disability rating in excess of 40 percent for any time during the appeal period. As such, the benefit of the doubt doctrine is inapplicable and the Veteran’s appeal for an increased disability rating in excess of 40 percent for his service-connected lower back disability is denied. 2. An increased disability rating in excess of 20 percent for lower back disability – Earlier Effective Date A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. Upon review of the evidence of record, the Board finds that a rating in excess of 20 percent is not warranted prior to January 30, 2018 for the Veteran’s lower back disability. The May 2016 VA examination showed flexion to 80 degrees, at worst. At no point prior to January 2018 was the Veteran’s flexion of the thoracolumbar spine 30 degrees or less, and there was no evidence of ankylosis or incapacitating episodes. The Veteran was not diagnosed with IVDS prior to January 30, 2018, and so the rating criteria for The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Diagnostic Code 5243 do not apply. Therefore, a higher rating is not warranted. The Board has also considered whether factors including functional impairment and pain as addressed under 38 C.F.R. §§ 4.40 and 4.45 would warrant higher ratings for the Veteran’s lumbar spine disability prior to January 2018. However, the May 2016 VA examination documented the Veteran’s limitations due to pain or repetitive use testing, and those limitations are reflected in the assigned rating. The preponderance of the evidence is against the Veteran’s claim for an increased disability rating prior to January 30, 2018. The Board acknowledges the Veteran’s written statements alleging that his examination conducted in May 2016 was performed by an examiner that did not care about his condition. However, the Board finds that the examiner did take into account the Veteran’s pain on motion and when it began, as opposed to the assertions of the Veteran that the examiner did not. Otherwise, the Veteran did not point out any specific results reported in the examination that were contrary to his then-current symptomatology. As such, the Board finds that the examination is adequate for rating purposes and will rely on it. As such, the benefit of the doubt doctrine is inapplicable and the Veteran’s appeal for an increased disability rating in excess of 20 percent prior to January 30, 2018 for his service-connected lumbar spine disability is denied. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bannach, 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.