Citation Nr: 20021167 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 18-18 777 DATE: March 24, 2020 ORDER Entitlement to an increased rating in excess of 10 percent for degenerative disc disease (DDD) in the lumbar spine with herniated nucleus pulposus, hereinafter referred to as a lumbar spine DDD disability, from April 2, 2014, is denied. FINDING OF FACT For the rating period on appeal from April 2, 2014, the service-connected lumbar spine DDD disability has been manifested by forward flexion of the thoracolumbar spine limited to 80 degrees and a combined range of motion of the thoracolumbar spine significantly greater than 120 degrees, without evidence of ankylosis, guarding, or muscle spasm. CONCLUSION OF LAW For the rating period on appeal from April 2, 2014, the criteria for an increased disability rating in excess 10 percent for the lumbar spine DDD have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 2004 to March 2008. This matter is on appeal from an August 2014 rating decision issued by the Regional Office (RO) in Indianapolis, Indiana. Duties to Notify and Assist The Veteran contends that the June 2014 VA examination was inadequate because it was poorly conducted by the VA examiner. The Veteran claims that the appointment was only 10 to 15 minutes long, the VA examiner did not measure “how far he could bend,” and only asked a few questions. See June 2015 Notice of Disagreement; April 2018 Substantive Appeal (VA Form 9). In the May 2014 VA examination, the VA examiner measured the thoracolumbar spine for flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation. The VA examiner measured the range of motion and when painful motion began. The report clearly shows that the VA examiner conducted the required range of motion testing, as indicated by the specific measures and indications on the report. A general assertion of not having the range of motion tested is outweighed in this case by the very specific measures and findings indicated following a VA examination protocol. For these reasons, and in the absence of specific contentions of irregularities or discrepancies with the examination report findings, the Board finds that the June 2014 VA examination is adequate for the purpose of rating the lumbar DDD disability; therefore, a remand for a new VA examination is not warranted. Based on the foregoing, the Board finds that all relevant documentation, including VA treatment records, VA examinations, and private treatment records, has been secured and all relevant facts have been developed. There remains no question as to the substantial completeness of the issue on appeal. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.326. The duties to notify and assist have been met. Legal Authority for Disability Ratings Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 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 civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1, 4.21. Disability ratings are based upon the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. See 38 C.F.R. § 4.27. VA has a duty to acknowledge and to consider all regulations that are potentially applicable to issues raised in the record and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. See 38 C.F.R. §§ 3.321(a), 4.1, 4.21. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. §§ 4.7, 4.21. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 4.3. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243), unless Diagnostic Code 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.71a. 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, a 10 percent disability rating is assigned 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 the entire spine. Id. The General Formula for Diseases and Injuries of the Spine also, in pertinent part, provide the following Notes: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. Note (2): (See also Plate V.) 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. 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 combined normal range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of the spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. Note (5): For VA compensation purposes, unfavorable ankylosis is 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 neurological symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Id. For disabilities of the musculoskeletal system, the Board also considers functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Although pain may cause a functional loss, pain itself does not constitute functional loss. Pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Except as otherwise provided in the rating schedule, all disabilities, including those arising from a single disease entity, are to be rated separately, and then all ratings are to be combined pursuant to 38 C.F.R. § 4.25. Esteban v. Brown, 6 Vet. App. 259, 261 (1994). The Court has interpreted 38 U.S.C. § 1155 as implicitly containing the concept that the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology; such a result would overcompensate the claimant for the actual impairment of earning capacity and would constitute pyramiding of disabilities, which is cautioned against in 38 C.F.R. § 4.14. See also Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). Rating the Lumbar DDD Disability The Veteran is in receipt of a 10 percent disability rating from March 21, 2008, rated under 38 C.F.R. § 4.71a DC 5242 as DDD of the lumbar spine. The Veteran generally appeals for an increased rating. See April 2017 Fully Developed Claim; June 2015 Notice of Disagreement. After a review of all the evidence, the Board finds that for the rating period from April 2, 2014 the lumbar DDD disability has been manifested by forward flexion of the thoracolumbar spine limited to 80 degrees and a combined range of motion of the thoracolumbar spine significantly greater than 120 degrees, without evidence of ankylosis, guarding, or muscle spasm. At the June 2014 VA examination, the Veteran endorsed flareups and pain. The VA examiner measured forward flexion of the thoracolumbar spine limited at 80 degrees, a combined range of motion of the thoracolumbar spine to 205 degrees, no ankylosis, and no evidence of guarding or muscle spasm. The VA examiner assessed that the disability did not impact the Veteran’s ability to work. The Veteran also reported that flareups cause moderate pain, no weakness, no fatigability, and no incoordination. Considering these examination findings, and the Veteran’s reports of minimal functional loss, applying the factors at 38 C.F.R. §§ 4.40 and 4.45 to the spine rating criteria, a rating in excess of 10 percent for the disability is not warranted for any period. For these reasons, the Board finds the weight of the evidence is against finding that the criteria for a disability rating in excess of 10 percent for the lumbar DDD have been met or more nearly approximated for this period. 38 C.F.R. §§ 4.3, 4.7, 4.114, Diagnostic Code 5242. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Costantino, 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.