Citation Nr: 20072863 Decision Date: 11/12/20 Archive Date: 11/12/20 DOCKET NO. 13-21 929A DATE: November 12, 2020 ORDER Entitlement to a rating excess of 20 percent for the service-connected thoracolumbar spine disability from December 5, 2012 is denied. FINDING OF FACT The Veteran’s lumbar spine disability was not manifested by forward flexion of the thoracolumbar spine to 30 degrees or less, with no evidence of ankylosis or intervertebral disc syndrome (IVDS) with incapacitating episodes requiring doctor-prescribed bed rest. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent from December 5, 2012 for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4,59, 4.71(a), Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1978 to September 1982. appeal. This case comes before the Board of Veteran’s Appeals (Board) on appeal of a March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the veteran testified before the undersigned Veterans Law Judge. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Rating are based on the average impairments of earning capacity. Individual disabilities are assigned separate diagnostic code. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple (“staged”) ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evolution, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual finding show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. 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 required for the rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected body part. Factors of joint disability include increased or limited motion, weakened movement, excess fatigability, incoordination, and painful movement., including flare-ups and after repeated use. DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995); 38 C.F.R. § 4.45. However, “pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system.” Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. Where pain alone result in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. However, subjective pain in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on the evidence of functional limitation caused by pain. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Pain in a particular joint may result in functional loss, but only if it limited the ability to perform normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Id.; 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.59, painful joints are entitled to at least the minimum compensable rating for the joint. Increased Rating for a Lumbar Spine Disability The Veteran contends he is entitled to an increased rating due to his thoracolumbar spine disability. The current ratings have been assigned pursuant to 38 C.F.R. §§ 4.25, 4.71(a), Diagnostic Code 5237 corresponding to a lumbsacral or cervical strain. Spinal conditions are evaluated under either the General Rating Formula for Disease and Injuries of the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episode (Formula for Rating IVDS), whichever method results in the higher evaluation when all disabilities are combine. 38 C.F.R. §§ 4.25, 4.71(a). Under the General Rating Formula for Diseases and Injuries of the Spine, 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. § 4.71(a), General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243). In addition, the Board notes that in Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (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." For VA compensation purposes, normal forward flexion of the thoracolumbar spine in 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. 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 combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71(a), General Rating Formula, Note (2); See also 38 C.F.R. § 4.71(a), Plate V. The Board must consider functional loss caused by pain or other factors listed in 38 C.F.R. §§ 4.40 and 4.45 that could occur during flare-ups or after repeated use and, therefore, may not be reflected on range-of-motion testing. See DeLuca, 8 Vet. App. at 206-08; see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, despite the relevance of the background factors delineated in §§ 4.40 or 4.45 when evaluating a disability, the rating assigned is based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71(a) (musculoskeletal system); therefore, a separate or higher rating predicated solely on 4.40 or 4.45 is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). Thus, the Veteran must show the range of motion limitations outlined in the General Rating Formula for Diseases and Injuries of the Spine as a result of functional loss described in DeLuca during the period on appeal. 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. According to the formula for Rating IVDS, a 20 percent rating requires evidence of 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 requires evidence of incapacitating episodes have a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating requires evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71(a), Formula Rating IVDS. An “incapacitating episode” is defined as 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). If IVDS is present in more than one spinal segment, provided that the effect in each spinal segment are clearly distinct, each segment will be evaluated on the basis of incapacitating episode ot under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Id. at Note (2). Unfavorable ankylosis is defined as “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.” Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always” considered favorable ankylosis. Id. The Veteran has a history of chronic lower back pain. In May 2012, the Veteran submitted a private opinion for service connection for lumbar spine disability. The private opinion confirmed a diagnosis for degenerative joint disease. The opinion states that the Veteran experiences severe back pain and inflammation. No range of motion measurements were taken. In December 2012, the Veteran reported for a VA examination for his lumbar spine disability. At the examination, forward flexion was measured at 45 degrees, and pain began at 40 degrees. After three repetitions, lumbar spine forward flexion was 45 degrees. The Veteran was noted as having additional limitation of range of motion of the lumbar spine, but no additional range of motion measurements were taken. His functional loss included interference with sitting, standing, and/or weightbearing, less movement than normal, weakened movement, excess fatiguability, and pain on movement. He had localized pain or tenderness of the lumbar spine. No guarding or spasms were noted. He was noted as regularly using a cane. His lumbar spine disability was noted as having an impact on his ability to work because his job required bending, lifting, sitting, and standing. No IVDS was found. In January 2016, the Veteran underwent a VA examination for his lumbar spine disability. He reported that he had pain flares about twice a month that made him stay home from work and that he missed an average of three to four days a month. He also reported intermitted muscle cramps in his lumbar spine that extended to his upper back and thighs to calves. The examiner noted that the Veteran could not reach overhead and that he could not lift more than 10 to 15 pounds due to his back. His range of motion for his forward flexion was measured at 0 to 60 degrees. He had guarding resulting in abnormal gait or spinal contour. The examiner did not report any ankylosis or IVDS. The examiner did find that the Veteran’s lumbar spine disability did have an impact on his ability to work. He said he was unable to do any heavy lifting that needed to be done at the auto parts store where he works. He also mentioned the missed days of work due to flare ups. This case was remanded in May 2017 to address Correia deficiencies in this examination. In January 2018, the Veteran reported for a VA examination for his lumbar spine disability. He complained of constant back pain and cramping with shooting pain down his legs. He had a hard time sleeping and bending made the pain worse. He did not report flare ups. His range of motion for his forward flexion was measured at 0 to 45 degrees. He was able to perform repetitive use testing with at least three repetitions, but it did not result in additional loss of function or range of motion. He did have muscle spasms and guarding that resulted in abnormal gait or spinal contour. No ankylosis or IVDS was found in the examination. The examiner did note that the Veteran’s lumbar spine disability did impact his ability to work. He could not stand or walk for long periods without severe back pain. He also needed to have a job with freedom to take sitting breaks. The examiner noted that the Veteran could not lift more than 20 pounds. This case was remanded in January 2020 due to this January 2018 examination that failed to comply with the Board’s remand instructions or with the requirements because the examiner noted she was unable to determine without mere speculation the functional ability resulting from repetitive use and flare-ups and did not provide adequate reasoning for that determination. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). At the July 2019 hearing with the undersigned Veterans Law Judge, the Veteran denied having incapacitating episodes that required physician-ordered bed rest and denied ankylosis. During the hearing, he disagreed with how the January 2018 examination was handled. He also felt like his bladder dysfunction was secondary to his lumbar spine disability, and said that he was currently employed. In January 2020, the Veteran was afforded another VA examination for his lumbar spine disability. The Veteran stated that his back pain has increased since 2018 and muscle spasms increased. He said that his back pain is like a cramp on the right side. The examiner found that the Veteran’s forward flexion was 0 to 45 degrees. The examiner noted pain on exam, but it did not result in and/or cause functional loss. There was no evidence of pain with weight bearing and no objective evidence of localized tenderness or pain on palpation of the lumbar spine. The examiner found that pain, weakness, fatiguability or incoordination did not significantly limit functional ability with flare-ups. The Veteran did not report any flare-ups or having any functional loss or functional impairment of the lumbar spine. No ankylosis was found during the examination. Although the examiner noted IVDS of the lumbar spine, the Veteran did not have any episode of acute signs and symptoms that required bed rest required by a physician in the past 12 months. The examiner noted that the Veteran’s lumbar spine disability did not impact his ability to work. Additionally, in August 2020, the Veteran was afforded an examination to determine the etiology of his bladder voiding dysfunction. The examiner opined that the Veteran’s claimed urinary dysfunction was less likely than not related to the service-connected lumbar spine disability. The examiner pointed out that the Veteran’s diagnosis of mild degenerative joint disease in the lumbar spine should not be expected to cause any neurologic issues related to the bladder or urinary system. The examiner stated that there are other, more common, causes of urinary frequency like benign prostatic hyperplasia (BPH). In regard to a rating increase in excess of 20 percent for the Veteran’s lumbar spine disability, the Board has reviewed the medical evidence of record and has found no evidence that the Veteran has had the required range of motion for a 40 percent rating, with or without the factors laid out in DeLuca. Additionally, there is no evidence in the record to support a finding of IVDS or ankylosis for the appeal period at issue. The Board has reviewed the Veteran's lay testimony and the VA treatment records in the claims file, but this evidence also does not tend to show that the symptoms of his low back condition warranted a rating in excess of 20 percent at any point during the appeal. Based on the foregoing, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for his lumbar spine disability from December 5, 2012. In denying such a rating, 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. The Board notes that the evidence of record does not show additional objective neurological abnormalities associated with the Veteran’s lumbar spine disability other than the already service-connected peripheral neuropathy of the lower left and right extremities. 38 C.F.R. § 4.71(a), General Rating Formula, Note (1). As indicated above, the evidence does not show bladder dysfunction as due to the service-connected low back disorder. As a final matter, the record shows that the Veteran has been employed and does not raise a claim for a total disability rating based upon individual unemployability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hetman 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.