Citation Nr: 20030145 Decision Date: 04/29/20 Archive Date: 04/29/20 DOCKET NO. 15-10 829 DATE: April 29, 2020 ORDER Entitlement to an initial rating in excess of 10 percent prior to January 28, 2020, and a rating in excess of 20 percent from January 28, 2020, for the Veteran’s service-connected lumbar spine degenerative disc disease is denied. FINDINGS OF FACT 1. For the appeal period prior to January 28, 2020, the Veteran’s service-connected lumbar spine degenerative disc disease resulted in pain, stiffness, difficulty bending and standing, forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, and combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; ankylosis, intervertebral disc syndrome, muscle spasms, and guarding were not present. 2. For the appeal period from January 28, 2020, the Veteran’s service-connected lumbar spine degenerative disc disease is manifested by pain, stiffness, difficulty bending and standing, forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, and combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; ankylosis and intervertebral disc syndrome are not present. CONCLUSIONS OF LAW 1. For the appeal period prior to January 28, 2020, for the Veteran’s service-connected lumbar spine degenerative disc disease, the criteria for an initial rating in excess of 10 percent were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.40, 4.45, 4.71(a), Diagnostic Code 5242. 2. For the appeal period from January 28, 2020, for the Veteran’s service-connected lumbar spine degenerative disc disease, the criteria for an initial rating in excess of 20 percent have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.40, 4.45, 4.71(a), Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1986 to May 1992 and from October 2003 to March 2005, to include service in Iraq from February 2004 to December 2004. For his meritorious service, the Veteran was awarded, among other awards, the Army Commendation Medal and the Southwest Asia Service Medal. This appeal comes to the Board of Veterans’ Appeals (Board) from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In July 2018 and January 2020, the Board remanded the issue for further development. Over the course of the entire appeal period, the Veteran has been in receipt of a total disability rating based on individual unemployability; there is no contention that the Veteran is unable to secure or follow a substantially gainful occupation solely due to his service-connected back disability on appeal before the Board. Thus, no further discussion of this issue is required. Entitlement to an initial rating in excess of 10 percent prior to January 28, 2020, and a rating in excess of 20 percent from January 28, 2020, for the Veteran’s service-connected lumbar spine degenerative disc disease. Disability evaluations are determined by the application of the 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 practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. The evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In rating disabilities of the musculoskeletal system, it is 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). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or maligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Where (as here) the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s service-connected lumbar spine degenerative disc disease is rated at 10 percent from May 24, 2013 to January 28, 2020, and 20 percent from January 28, 2020 under 38 C.F.R. § 4.71(a), Diagnostic Code 5242. The Board finds that a rating in excess of 10 percent prior to January 28, 2020, and a rating in excess of 20 percent from January 28, 2020, is not warranted. The General Rating Formula for Disease and Injuries of the Spine is laid out in 38 C.F.R. § 4.71(a), Diagnostic Codes 5235 to 5243. The Spine is evaluated under these rating criteria 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. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. 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 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 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 of the height. 38 C.F.R. § 4.71(a). Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under eth appropriate diagnostic codes for the specific joint or joints involved. 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. With x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, rate as 20 percent. With x-ray evidence of involvement of 2 or more major joints or 2 or more minor joints, rate as 10 percent. See 38 C.F.R. § 4.71(a), Diagnostic Code 5003. In February 2014, the Veteran was afforded a VA examination for his back condition. The Veteran was diagnosed with degenerative disc disease of the lumbar spine. The Veteran reported that he had low back pain and stiffness. He took Ibuprofen for the pain. The VA examiner noted that the Veteran did not report flare-ups. Initial range of motion testing revealed forward flexion to 80 degrees, extension to 25 degrees, right lateral flexion to 25 degrees, left lateral flexion to 25 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 25 degrees. There was no objective evidence of painful motion. Repetitive use testing revealed forward flexion to 80 degrees, extension to 25 degrees, right lateral flexion to 25 degrees, left lateral flexion to 25 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 25 degrees. The Veteran did not have additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing. The Veteran had functional loss of the spine or impairment caused by less movement than normal. The Veteran did not have muscle spasms, muscle atrophy, localized tenderness or pain to palpation, or guarding of the thoracolumbar spine. Further, the VA examiner noted that the Veteran did not have ankylosis, radiculopathy, or intervertebral disc syndrome. In June 2019, the Veteran was afforded a VA examination for his back condition. The Veteran was diagnosed with degenerative disc disease of the lumbar spine. The Veteran reported having sharp pain that started in his lower back which radiated down his right leg. He denied tingling, burning, or numbness. Flare-ups of the back occurred twice a year. The back flare-ups were severe to the point that he could not stand due to back pain. The back flare-ups were precipitated by bending over to tie his shoe or anything. They were alleviated by staying in bed and ice. The Veteran had functional loss. It was hard to walk, and he could not stand long. Initial range of motion testing revealed forward flexion to 90 degrees, extension to 25 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. Pain was exhibited in forward flexion, extension, right lateral flexion, and left lateral flexion. However, pain did not result in or cause additional functional loss. There was no evidence of pain with weight bearing. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissues of the thoracolumbar spine. The Veteran 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 after three repetitions. The VA examiner noted that the Veteran was able to perform repeated use over time, but pain, weakness, fatigability, or incoordination did not significantly limit ability with repeated use over a period of time. The VA examiner was able to describe the range of motion. Forward flexion was to 90 degrees, extension was to 25 degrees, right lateral flexion was to 30 degrees, left lateral flexion was to 30 degrees, right lateral rotation was to 30 degrees, and left lateral rotation was to 30 degrees. The Veteran did not have guarding, muscle spasms, muscle atrophy, ankylosis, or intervertebral disc syndrome. However, the VA examiner noted that the Veteran had moderate intermittent radicular pain of the right lower extremity. However, the VA examiner concluded that there were no objective findings of radiculopathy. The Veteran was afforded a VA examination for his back disability in January 2020. The Veteran reported that it was hard for him to bend over or sometimes walk and stand up straight. He took pain pills. Flare-ups of the back occurred about every 2 to 3 months. The back flare-ups were severe and lasted about 5 to 6 days. The back flare-ups were precipitated by something as simple as bending over to tie his shoes. He did not know what flare-ups were alleviated by. The Veteran reported functional loss in that he could not sit more than 5 to 10 minutes or drive. Initial range of motion testing revealed forward flexion to 50 degrees, extension to 20 degrees, right lateral flexion to 15 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. Pain was noted on examination, but it did not cause additional functional loss. The Veteran had pain in forward flexion, extension, right lateral flexion, and left lateral flexion. The Veteran had pain with weight-bearing. The Veteran was able to perform repetitive sue testing with at least three repetitions. There was no additional loss of function or range of motion after three repetitions. The Veteran was not being examined immediately after repetitive use over time. Pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time. The VA examiner was able to describe the functional loss in terms of range of motion. For repeated use over a period of time, forward flexion was to 45 degrees, extension was to 15 degrees, right lateral flexion was to 10 degrees, left lateral flexion was to 15 degrees, right lateral rotation was to 30 degrees, and left lateral rotation was to 30 degrees. The examination was not being conducted during a flare-up. Pain, weakness, fatigability or incoordination significantly limited functional ability with flare-ups. Pain caused functional loss. Range of motion during flare-ups was estimated to be forward flexion to 45 degrees, extension to 15 degrees, right lateral flexion to 10 degrees, left lateral flexion to 15 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. The Veteran did not have guarding, muscle atrophy, or muscle spasm of the thoracolumbar spine. The VA examiner noted that the Veteran did not have radiculopathy, ankylosis, or intervertebral disc syndrome. There was no objective evidence of pain on passive range of motion testing and non-weight bearing testing. The VA examiner confirmed that the Veteran did not have radiculopathy. A rating in excess of 10 percent for the appeal period prior to January 28, 2020, for the Veteran’s service-connected lumbar spine degenerative disc disease is not warranted. The Veteran’s lumbar spine degenerative disc disease caused him pain and stiffness in his back. Further, he had difficulty walking and standing for long periods. Under the General Rating Formula for Disease and Injuries of the Spine, for a rating in excess of 10 percent to be assigned, the Veteran’s back disability would need to exhibit unfavorable ankylosis of the entire spine; unfavorable ankylosis of the entire thoracolumbar spine; forward flexion of the thoracolumbar spine to 60 degrees or less; 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. On his February 2014 VA examination, the Veteran’s initial range of motion testing revealed forward flexion to 80 degrees, extension to 25 degrees, right lateral flexion to 25 degrees, left lateral flexion to 25 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 25 degrees. On the Veteran’s June 2019 VA examination, his initial range of motion testing revealed forward flexion to 90 degrees, extension to 25 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. Further, the Veteran did not have ankylosis, intervertebral disc syndrome, muscle spasms, or guarding. Therefore, a rating in excess of 10 percent is not warranted for the appeal period prior to January 28, 2020. A rating in excess of 20 percent for the appeal period from January 28, 2020, for the service-connected lumbar spine degenerative disc disease is not warranted. The Veteran’s back disability caused him to have severe flare-ups that occurred about every 2 to 3 months. He had a hard time bending over, walking, and standing straight. He took pain pills. Under the General Rating Formula for Diseases and Injuries of the Spine, the Veteran’s back disability would need to exhibit unfavorable ankylosis of the entire spine, unfavorable ankylosis of the entire thoracolumbar spine, forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, in order for a rating in excess of 20 percent to be assigned. On his January 2020 VA examination, range of motion testing for repetitive use over a period of time revealed that the Veteran had forward flexion was to 45 degrees, extension was to 15 degrees, right lateral flexion was to 10 degrees, left lateral flexion was to 15 degrees, right lateral rotation was to 30 degrees, and left lateral rotation was to 30 degrees. Initial range of motion testing revealed forward flexion to 50 degrees, extension to 20 degrees, right lateral flexion to 15 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. Range of motion during the Veteran’s flare-ups was estimated to be forward flexion to 45 degrees, extension to 15 degrees, right lateral flexion to 10 degrees, left lateral flexion to 15 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. Thus, even at the infrequent periods of flare-ups when the Veteran’s disability could be considered at its most severe level, his range of motion is above the level necessary for a rating in excess of 20 percent. The VA examiner noted that the Veteran did not have radiculopathy, ankylosis, or intervertebral disc syndrome. There was no objective evidence of pain on passive range of motion testing and non-weight bearing testing. The VA examiner confirmed that the Veteran did not have radiculopathy. Therefore, a rating in excess of 20 percent is not warranted for the appeal period from January 28, 2020. The Board has considered the Veteran’s lay statements in support of his claim for an increased rating for his back disability. However, the Board concludes that the medical findings are of greater probative value than the Veteran’s allegations regarding the severity of his condition. The nature and extent of the Veteran’s disability have been addressed during the appeal period and the medical findings directly address the criteria under which this disability is evaluated. Accordingly, the Board finds that a rating in excess of 10 percent prior to January 28, 2020, and a rating in excess of 20 percent from January 28, 2020, for the Veteran’s service-connected lumbar spine degenerative disc disease is not warranted. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Crawford, 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.