Citation Nr: 20026052 Decision Date: 04/15/20 Archive Date: 04/15/20 DOCKET NO. 15-35 707 DATE: April 15, 2020 ORDER A rating in excess of 20 percent prior to December 3, 2018 for spondylolisthesis is denied. A rating in excess of 40 percent between February 1, 2019 to July 14, 2019 for spondylolisthesis is denied. A rating in excess of 20 percent from July 15, 2019 for spondylolisthesis is denied. FINDING OF FACTS 1. For the period prior to December 3, 2018, the Veteran’s low back disability did not result in any limited motion in either flexion or extension, with no evidence of muscle spasm, spinal contour, or abnormal gait. 2. Between February 1, 2019 to July 14, 2019, the Veteran’s low back disability is not shown to have caused ankylosis, nor has he been prescribed bed rest for at least six weeks during any twelve-month period on appeal. 3. From July 15, 2019, the Veteran’s low back disability resulted in a forward flexion of 50 degrees, with favorable ankylosis limited to the L4-5 and L5-S1. CONCLUSIONS OF LAW 1. Prior to December 3, 2018, the criteria for a rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5243. 2. For the period between February 1, 2019 to July 14, 2019, the criteria for a rating in excess of 40 percent for a low back disability have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.59, 4.71a, Diagnostic Code 5237. 3. From July 15, 2019, the criteria for a rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1973 to May 1974. He testified before the undersigned Veterans Law Judge at a January 2017 Board hearing. This matter is on appeal from a May 2015 rating decision and was previously remanded by the Board in August 2018. It is the Veteran’s contention that he is entitled to higher ratings for his service-connected back disability. Increased Ratings By way of history, the Veteran filed a non-initial rating increase claim in excess of 20 percent for his service-connected spondylolisthesis in February 2015. His claim was initially denied by a May 2015 rating decision, which found that the Veteran’s symptoms did not warrant a rating higher than 20 percent. In response, the Veteran filed a timely appeal and was afforded VA examinations to adequately determine the severity of his condition. During the pendency of the appeal, the Veteran underwent a posterior interbody fusion and discectomy in December 2018. As a result, he was granted a temporary evaluation of 100 percent effective December 3, 2018. After the necessitating convalescence period, he was assigned a 40 percent disability rating from February 1, 2019. Pursuant to a new VA examination, he was assigned a 20 percent rating, effective July 15, 2019. The Board must now determine whether the Veteran was entitled to a rating in excess of 20 percent prior to December 3, 2018, a rating excess of 40 percent from February 1, 2019, and a rating in excess of 20 percent from July 15, 2019. The regulations provide that back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS). Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. IVDS (preoperatively or postoperatively) will be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, DC 5243. According to the Formula for Rating IVDS based on Incapacitating Episodes, a 40 percent rating requires evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. The maximum 60 percent rating contemplates incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For purposes of evaluations under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent evaluation is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when muscle spasm or guarding is 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 when forward flexion of the thoracolumbar spine is limited to 30 degrees or less or when there is favorable ankylosis of the entire thoracolumbar spine is present. A 50 percent rating is assigned where unfavorable ankylosis of the entire thoracolumbar spine is present, and a 100 percent rating 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, DC 5237. These ratings are made with or without symptoms such as pain (whether or not it radiates), stiffens, or aching in the area of the spine affected by residuals of injury or disease). Id. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V. 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. Furthermore, in evaluating disabilities of the musculoskeletal system, it is also necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. Even if range of motion was slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, 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. Id. A rating in excess of 20 percent rating prior to December 3, 2018 In February 2015, the Veteran filed for an increased rating in excess of 20 percent for his service-connected spondylolisthesis due to worsening symptoms. Private treatment records dating January 2015 noted that the Veteran complained of chronic back pain, radiating to his right buttock and right lower extremity. The physician noted that the Veteran demonstrated decreased range of motion in left and right rotation, left and right lateral flexion. A specific degree of limitation was however, not recorded. His extension was to 20 degrees. He was afforded a VA examination in April 2015. There, the Veteran demonstrated a normal range of motion upon initial testing. This flexion was to 90 degrees with 30-degree extension. There was no pain with weight bearing. He was able complete repetitive use testing without resulting in additional functional loss or motion. There was no evidence of guarding or muscle spasms resulting in abnormal gait. He retained full muscle strength scoring a 5/5. A reflex and sensory examination revealed normal results. There was no evidence of IVDS, ankylosis or other neurological abnormalities. At his January 2017 Board hearing, the Veteran testified to worsening pain, which radiated into his legs. He indicated that the symptoms had affected his physical mobility and his employment. It is noted that the Veteran has been service connected for radiculopathy in both lower extremities since his claim for increase. Private orthopedic notes in November 2018 reported ‘significant dynamic component to stability pattern’ of the L5 and S1 on extension. MRI results confirmed disc protrusion at L5-S1. Prior to December 3, 2018, the evidence does not show that the Veteran has been diagnosed with IVDS, nor does it show that he had been prescribed bedrest. He has not argued to the contrary. Therefore, to warrant a rating in excess of 20 percent, the forward flexion in the Veterans lumbar spine must be functionally limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine must be shown. However, objective medical evidence reported a full range of motion, with forward flexion of 90 degrees, extension at 30 degrees, with right and left lateral flexion, as well as right and left lateral rotation all at 30 degrees. At no time did the Veteran have ankylosis of the entire thoracolumbar spine. Therefore, the Veteran is not entitled to a schedular rating in excess of 20 percent for his lumbar spine disability for the period prior to December 3, 2018. The Board must also consider functional loss due to flare-us of pain fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). However, during this time period, the objective medical evidence indicates that the range of motion of the Veteran’s lumbar spine disability was not so functionally limited as to warrant a rating in excess of 20 percent. For example, the April 2015 VA examination, not only did the Veteran demonstrate full range of motion in his lumbar spine, but he also did not exhibit any additional pain or limited motion upon repetitive motion testing. As such, there was no suggestion of loss of function beyond what was depicted in his initial range of motion test. Thus, the Veteran is not entitled to a schedular rating in excess of 20 percent for his lumbar spine disability prior to December 3, 2018. A rating in excess of 40 percent between February 1, 2019 to July 14, 2019 The Board notes that the Veteran was assigned a temporary 100 percent rating as a result of a lumbar interbody fusion and discectomy, effective December 3, 2018. After a period of convalescence, the Veteran was then assigned a 40 percent disability rating based on his symptoms, effective February 1, 2019. The Veteran now argues that he is entitled to a rating higher than 40 percent for this time period. Private orthopedic treatment records in January 2019 reported that the Veteran’s pain had subsided with injections. However, MRI results remained unchanged. Range of motion testing showed his extension to 20 degrees. Based on his March 2019 Disability Benefits Questionnaire, the Veteran was diagnosed with IVDS in addition to his spondylolysis. He reported flare ups as well as functional loss. His initial range of motion testing showed a forward flexion to 30 degrees with extension to 10 degrees. His right lateral flexion and left lateral rotation was to 20 degrees. His right lateral rotation and left lateral flexion was to 15 degrees. Repetitive motion testing revealed additional limited range of motion, showing forward flexion being reduced to 20 degrees. The Veteran also reported pain, fatigue, and weakness. However, there was no guarding, muscle spasms resulting in abnormal spinal contour. There was a slight reduction in muscle strength but no indication of muscle atrophy. A reflex and sensory examination revealed decreased results. A straight leg raising test also resulted in positive findings. He also demonstrated symptoms of radiculopathy in both lower extremities. There was no finding of ankylosis. As described above, there are only two sets of back symptoms that provide for the assignment of a rating in excess of 40 percent: 1) Where bed rest has been prescribed for at least 6 weeks during a 12-month period, or 2) where ankylosis is found to be present. Neither is shown to be present in this case. While the Veteran was diagnosed with intervertebral disc syndrome, medical evidence does not suggest incapacitating episodes that would support a basis for a rating in excess of 40 percent. Specifically, his March 2019 DBQ physician noted that the Veteran did not have any episodes of acute signs and symptoms due to intervertebral disc syndrome that would require bed rest. With regard to ankylosis, a subsequent medical opinion found that the Veteran’s back surgery fused two discs and to that extent those discs were considered to be ankylosed. However, there is no suggestion that the ankylosis was unfavorable. Moreover, neither his private treatment record nor his March 2019 DBQ found ankylosis in the Veteran’s spine. While the Board acknowledges the Veteran’s statements relating to worsened symptoms, he lacks the medical training and expertise to provide a diagnosis. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). 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 neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5). Here, the medical evidence does not support the presence of symptomatology consistent with unfavorable ankylosis of the entire thoracolumbar spine. Finally, the Board notes that the Veteran demonstrated symptoms of radiculopathy in his lower extremities as a result of his spondylolisthesis. The Veteran was assigned separate compensable ratings for his sciatic radiculopathy of the left and right legs by a November 2019 rating decision. He was provided an explanation of his appellate rights should he disagree with the ratings assigned for his neurologic impairments, but he has not specifically contested the ratings for his bilateral lower extremities. Therefore, the Board will neither disturb nor address the assigned ratings for radiculopathy. As such, the criteria for a rating in excess of 40 percent have not been met, and the Veteran’s claim is denied. A rating in excess of 20 percent rating from July 15, 2019 From July 15, 2019, the Veteran was assigned a 20 percent disability rating for his spondylolisthesis. However, he now argues that he is entitled a rating higher than 20 percent. Upon review of the evidence, the Board finds that a rating in excess of 20 percent for his spondylolisthesis is not warranted. The July 2019 VA examination showed an improvement in his range of motion as his back disability healed further following his surgery. He demonstrated forward flexion to 50 degrees, extension to 10 degrees. His right lateral flexion was to 15 degrees and left lateral flexion was to 20 degrees. His right and left lateral rotation were to 30 degrees. He was able to complete a repetitive use testing without exhibiting any additional limited motion or functional loss. There was no evidence of pain with weight bearing. There was no evidence of IVDS, muscle guarding or muscle spasm. Contrary to previous findings, the examiner suggested that the Veteran had favorable ankylosis of the entire thoracolumbar spine. The RO sought clarification of this finding, as the range of motion findings appeared to be inconsistent with the findings of ankylosis of the thoracolumbar spine. As a result, a medical opinion addendum was issued in December 2019 in which the examiner found two segment fusion of favorable ankylosis of the anterior lumbar interbody fusion L4-5 and L5-S1, based on a spinal fusion surgery having been completed. However, the examiner did not find favorable ankylosis of the entire lumbar spine. Thus, the Veteran does not have favorable ankylosis of the entire thoracolumbar spine, as previously reported in the July 2019 VA examination report. Given that the Veteran is not shown to have IVDS in the July 2018 VA examination, a rating higher than 20 percent may be assigned only if the Veteran demonstrates the necessary limited range of motion. As previously discussed, 38 C.F.R. § 4.71a clearly requires that a rating higher than 20 percent for a thoracolumbar spine disability can only be assigned if, at a minimum, the Veteran exhibits forward thoracolumbar flexion that is functionally limited to 30 degrees or less. The most recent VA examination in July 2019 revealed that the Veteran’s forward flexion was to 50 degrees with extension to 10 degrees. The Board notes that favorable ankylosis is shown. However, given the clarification provided by the December 2019 medical opinion addendum, favorable ankylosis of the entire thoracolumbar is not shown. Rather, the Veteran has the equivalent of favorable ankylosis in two lumbar segments, L4-5 and L5-S1. Thus, without the showing of favorable ankylosis of the entire thoracolumbar or forward flexion limited to 30 degrees or less, a rating in excess of 20 percent is not warranted. As described, the objective medical evidence does not show that the Veteran’s lumbar spine disability has not been so functionally limited as to warrant a rating in excess of 20 percent. The July 2019 VA examination report has shown that the Veteran was able to complete a repetitive use testing without resulting in forward flexion less than the initial 50 degrees. Despite the Veteran’s assertion that his pain causes functional loss, it was not shown that his pain effectively limits his range of motion to such a degree as to support a higher rating. As such, a rating in excess of 20 percent from July 15, 2019 is not warranted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Yeh, 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.