Citation Nr: 20030438 Decision Date: 04/30/20 Archive Date: 04/30/20 DOCKET NO. 16-20 554 DATE: April 30, 2020 ORDER Entitlement to an increased evaluation for degenerative disc disease (DDD) of the lumbar spine, in excess of 20 percent disabling prior to June 17, 2016, and in excess of 40 percent disabling thereafter, is denied. FINDING OF FACT Prior to June 2016, the Veteran's lumbar spine disability was not productive of flexion limited to 30 degrees or less; and unfavorable ankylosis was not shown at any point during the period on appeal. CONCLUSION OF LAW The criteria for entitlement to an increased evaluation for lumbar spine disability in excess of 20 percent prior to June 2016 and in excess of 40 thereafter, have not been met. 38 U.S.C. § 1155 ; 38 C.F.R. §§ 3.102 , 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1960 to July 1964. He also served in the Naval Reserves. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that continued a 20 percent rating for degenerative disc disease. In January 2018, a Board hearing was held before the undersigned and a transcript is associated with the Veteran’s claims file. This matter was last before the Board in April 2018 where it was remanded for additional development, including a new VA spinal examination and readjudication of the claim. The Board notes that the Veteran also has a head injury claim which was recently adjudicated in an April 2020 Board decision. That issue was the subject of a March 2017 Board hearing before a different VLJ. This appeal has been advanced on the Board’s docket pursuant to 38C.F.R. §20.900(c). 38U.S.C. §7107(a)(2). Increased Rating The Board finds that the instant matter encompasses a period on appeal arising from the Veteran’s October 31, 2012 application for an increased rating for the Veteran’s service-connected lumbar spine disability. See October 2012 VA Form 21-4138. The Board acknowledges that this form was received by the VA within a year of the August 2012 award of service connection, but the intent demonstrated by the Veteran’s procedural filings has been solely related to readdressing the evaluation due to worsening as opposed to a challenge of the enacting rating decision or effective date. A July 2013 rating decision denied the claim, continuing the 20 percent evaluation under the same Diagnostic Code 5242 but altered the description of the disability from the previous “degenerative arthritis of the lumbar spine with retrolisthesis.” Thereafter, the Veteran submitted additional argument and evidence and the issue was readjudicated in the underlying May 2014 rating decision which continued the initial evaluation of 20 percent disabling for DDD of the lumbar spine. In a March 2015 VA Form 21-0958 (Notice of Disagreement) the Veteran elected to challenge the evaluation of his disability, indicating that he sought a “40%” evaluation. See also April 2016 VA Form 9 (“My back disability has gotten worse then when I initially applied for benefits and I am entitled to an increased rating of 40%.”) During the pendency of the appeal, an August 2016 rating decision increased the evaluation of DDD to 40 percent, effective June 17, 2016. The Board finds that upon review of the record, the current 20 and 40 percent evaluations accurately reflect the symptomatology manifested by the lumbar spine disability. Thus, a higher rating is not warranted at any point throughout the period on appeal. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Under the General Rating Formula for Diseases and Injuries of the Spine (Diagnostic Codes 5235-5243), the General Rating Formula provides that 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 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, a 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 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. Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent rating. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Unfavorable ankylosis of the entire spine warrants a 100 percent rating. Id. Diagnostic Codes 5003 and 5010 require that arthritis be evaluated on the basis of limitation of motion, if compensably disabling based on the effect of arthritis on the affected joints. 38 C.F.R. § 4.71a. There is also a formula for rating intervertebral disc syndrome (IVDS) based on incapacitating episodes (prescribed bed rest). 38 C.F.R. § 4.71a. In this case, incapacitating episodes requiring prescribed bed rest are not shown. As an initial matter, in August 2017 the Veteran filed a claim for evaluations of associated neurological disorders including bilateral lower extremity radiculopathy. In November 2018, the Veteran was awarded a separate rating of 10 percent disabling for right lower extremity (RLE) radiculopathy (sciatic nerve) associated with the lumbar spine disability, effective August 10, 2017. In a subsequent a February 2020 rating decision, that evaluation was increased to 20 percent disabling, effective from December 12, 2019. The February 2020 rating decision also awarded entitlement to a separate rating for left lower extremity (LLE) radiculopathy (sciatic nerve) with an initial assigment of 20 percent disabling from December 12, 2019. These separate ratings were not appealed and are therefore not before the Board. The Board now turns to determine if the Veteran is entitled to a higher disability rating for his lumbar spine DDD. Upon VA examination in August 2012 the Veteran was diagnosed with degenerative arthritis and retrolisthesis of the lumbar spine. Veteran reported progressively worse pain with flare-ups that result in difficulty pushing, pulling, lifting prolonged standing and carrying objects. Physical evaluation revealed range of motion (ROM) of flexion to 55 degrees with pain, extension to 15 degrees with pain. Repetitive testing revealed flexion and extension to 55 and 15 degrees respectively. Bilateral lateral rotation was noted to be 25 degrees both with and without repetition and bilateral lateral flexion was noted to be 20 degrees both with and without repetition. The examiner noted additional functional limitation after repetition in the form of pain, less movement, and excess fatiguability. Muscle spasms were assessed resulting in abnormal spinal contour. Muscle strength and sensory testing were normal. Reflex exam was 1+ in all aspects. IVDS was not found. Upon VA examination in June 2013 the Veteran was diagnosed with degenerative arthritis and retrolisthesis of the lumbar spine. Veteran reported experiencing radiating pain about a year and a half ago with “left foot drop.” Veteran reported flare-ups that result in difficulty standing, walking and exercising. Physical evaluation revealed ROM of flexion to 55 degrees with pain, extension to 15 degrees with pain. Repetitive testing revealed flexion and extension to 55 and 15 degrees respectively. Bilateral lateral rotation was noted to be 25 degrees both with and without repetition and bilateral lateral flexion was noted to be 20 degrees both with and without repetition. The examiner noted additional functional limitation after repetition in the form of pain, less movement, and excess fatiguability. Muscle spasms did not result in abnormal spinal contour. Muscle strength and sensory testing were normal. Reflex exam was 1+ in all aspects. Straight leg was assessed as negative. Radiculopathy was identified on the LLE, and IVDS was assessed without incapacitating episodes. Examiner assessed that degree of ROM on flare-ups would be reduced by 10 degrees of forward flexion, by 5 degrees extension and by 5 degrees of right and left lateral rotation and flexion. A May 2014 VA examination reflects a diagnosis of degenerative disc disease of the lumbar spine. Veteran reported experiencing worsening pain exacerbated by sitting or standing too long and “intermittent foot drop.” Veteran reported flare-ups described as “constant pain to the lower back.” Physical evaluation revealed ROM of flexion to 60 degrees with pain, extension to 10 degrees with pain. Bilateral lateral rotation was noted to be 20 degrees and bilateral lateral flexion was noted to be 20 degrees both. Repetitive results were the same. The examiner noted additional functional limitation after repetition in the form of pain and less movement. Muscle spasms were assessed with resulting abnormal gait. Muscle strength, sensory testing and reflex exams were normal. Radiculopathy was not assessed. IVDS was not assessed. Examiner assessed that on flare-ups there would not be any additional limitation of functional ability. The Veteran submitted a Back Conditions DBQ in May 2014 completed by a private medical provider of UC Irvine. Examiner did not indicate review of medical record, and assessed diagnosis of lumbosacral strain. Veteran reported lower back pain worse on the right side without radiation resulting in difficulty sitting and “driving or getting out of the car.” Physical evaluation results are not clearly written, appear to indicate ROM of forward flexion approximately 30 degrees, extension less than 30 degrees and right and left lateral flexion/rotation “limited due to pain.” Examiner assessed negative straight leg raise and “NL sensation.” Tenderness and pain upon palpation with muscle spasms and “foot drop.” Functional loss noted as less movement, pain, disturbance of locomotion, and interference with sitting and standing. Muscle strength testing noted as abnormal (4/5) in all aspects except ankle dorsiflexion which was 3/5. Sensory testing was noted as normal and straight leg testing was negative. Examiner did not indicate whether radiculopathy was present, but wrote “foot drop” and noted moderate and intermittent bilateral radicular pain. No IVDS or ankylosis was identified. A June 2016 VA examination reflects that the examiner did not review any records but physically examined the Veteran. Diagnoses of degenerative disc disease of the lumbar spine and arthritis with retrolisthesis were assessed. Veteran reported experiencing worsening pain, stiffness and limited ROM with the examiner noting that he was “hunched over.” Veteran reported flare-ups of sharp shooting pain with radiation upward alleviated with laying down. Physical evaluation revealed ROM of flexion to 20 degrees with pain, extension to 10 degrees with pain. Bilateral lateral rotation was noted to be 10 degrees and bilateral lateral flexion was noted to be 10 degrees. Repetitive results were the same. The examiner noted additional functional limitation of pain, fatigue, weakness and less movement. Muscle spasms/guarding/tenderness assessed without abnormal gait or contour. Muscle strength, sensory testing and reflex exams were normal. Radiculopathy was not assessed. IVDS and ankylosis were not assessed. . At his January 2018 hearing the Veteran testified that he was now seeking an evaluation for his back disability “higher than 40 percent.” In support of the claim the Veteran endorsed symptoms of worsening pain with difficult sitting and standing. The Veteran testified that he was becoming a hunchback, needed a cane and would lie down to alleviate symptoms. Veteran testified that he “occasionally” was incapacitated and remained in bed an entire week over the last year. The Veteran submitted another Back Conditions DBQ in February 2018 completed by a private medical provider of UC Irvine. Examiner did not indicate review of medical record, and assessed diagnoses of lumbosacral strain, DDD, cervical and lumbar radiculopathy. Flare-ups were assessed and described as “periods of exacerbation.” Physical evaluation results are not clearly written, appear to indicate ROM of forward flexion approximately 20 degrees, extension less than 10 degrees and right and left lateral flexion/rotation all less than 10 degrees. Repetitive testing could not be performed. Spasms assessed as exaggerated kyphosis with abnormal gait and spinal contour. Functional loss limitations noted as less movement than normal, weakness, pain, deformity, disturbance of locomotion and interference with sitting and standing. Examiner assessed muscle atrophy of the quadriceps due to radiculopathy. Bilateral muscle strength testing was assessed as abnormal and between 3-4/5 for all facets. Examiner assessed “unfavorable ankylosis of the entire thoracolumbar spine.” Reflex exam assessed as “4+” in all facets. Sensory exam was normal bilaterally for the thigh, decreased for the knee and lower leg, and absent for the foot/toe. Straight leg testing was positive. Radiculopathy was assessed as moderate bilateral, constant pain, severe intermittent bilateral pain, mild dull pain, moderate paresthesias on the right and mild on the left, moderate numbness on the right and mild on the left. Overall radicular symptoms qualified as moderate on the right and mild on the left involving the femoral and sciatic nerves. Examiner assessed IVDS with 4 to 6 weeks of incapacitating episodes. In conclusion the examiner assessed that the Veteran was “unable to perform any prolong sitting or bending or lifting.” At the Veteran’s most recent VA examination in December 2019, the examiner reviewed the claims file and physically examined the Veteran. The Veteran reported experiencing worsening pain described as “dull” without radiation to the legs but numbness and tingling in the feet exacerbated with sitting, standing and walking for prolonged time. Veteran reported treatment with acupuncture. MRI reflected impression of multilevel degenerative changes with “severe” bilateral neuroforaminal narrowing at L4-5. Veteran did not report any flare-ups. Physical evaluation revealed ROM of flexion to 30 degrees with pain, extension to 10 degrees with pain. Bilateral lateral rotation was noted to be 20 degrees and bilateral lateral flexion was noted to be 10 degrees. Repetitive results were the same. The examiner noted additional functional limitation of pain, fatigue, weakness and lack of endurance. Muscle spasms/guarding/tenderness were not assessed. Examiner noted antalgic gait with disturbance of locomotion and interference with sitting and standing. Muscle strength was normal in all facets (5/5) without atrophy. Reflex exam normal (2+) bilaterally in knee and hypoactive (1+) in bilateral ankle. Sensory exam normal in all aspects but bilateral toes where assessed as decreased. Straight leg testing negative. No radicular pain, but severe paresthesias and numbness bilaterally was present. Sciatic nerve root identified bilaterally. No ankylosis or IVDS were assessed. Occasional use of a cane was noted. Private and VAMC treatment records throughout the period on appeal are generally consistent with the VA examinations of record, reflecting occasional complaints of pain and limitation of motion with accompanying neurologic abnormalities without ankylosis, treated with injections, acupuncture and physical therapy. See i.e. October 2012 UC Irvine (“Left foot drop, which could be related to the lumbar radiculopathy. I will go ahead and refer him to physical therapy”); June 2015 VAMC Primary Care note (“been seen in UCI for low back pain- injection in SI joint- rec by non-va pain management but declined… recommended surgery for low back-pt declined”); November 2015 VAMC Primary Care note (“lumbar back exam…mild tenderness parasp area m- L2-L4… Low Back pain-DDD, and compression deformities, facet OA”); June 2016 Mission Medical Center (“significant postural and gait dysfunction w/severely limited and painful cervical, thoracic and lumbar mobility…continue physical therapy”); December 2017 VAMC Primary Care note (“PMHX: low back pain…no muscle, back pain, joint pain or stiffness”); December 2018 VAMC Primary Care note (“No muscle, back pain, joint pain or stiffness… Lumbar DJD: Stable”); August 2019 VAMC Acupuncture note (“neck and low back pain has been getting worse during past 6-7 years. The low back pain radiate to both hips, worsen by walking, and not relieved by rest. Patient received physical therapy and noted minimal pain relief”). After reviewing the evidence of record as a whole, the Board finds that the assignment of a rating in excess of 20 percent disabling prior to June 17, 2016, or in excess of 40 percent disabling thereafter for the Veteran's service-connected lumbar spine disability is not warranted. Notably, for the period prior to June 17, 2016, the Board finds that a preponderance of the evidence weighs against a finding the presence of flexion of 30 degrees or less, warranting no more than the 20 percent rating currently assigned. The Board acknowledges the May 2014 private DBQ finding of flexion which he appeared he meant to convey as to “approximately 30 degrees.” However, the May 2014 DBQ is of limited probative value as it failed to record an exact measurement with a goniometer and merely indicated the findings with approximations and ditto marks as opposed to precise measurements. Conversely, the VA examination also conducted in May 2014 produced a thorough medical report, with an in-depth history of the condition and precise measurements. Thus, the Board finds the May 2014 VA medical report to be more probative and persuasive than the findings of the May 2014 private DBQ. Concerning the period following June 17, 2016, the Veteran is already in receipt of the 40 percent disability evaluation which he initially sought, as noted above. See March 2015 VA Form 21-0958; April 2016 VA Form 9. Regardless, the Veteran is assumed to be seeking the highest evaluation as possible. However, under DC 5242, unfavorable ankylosis of the entire thoracolumbar spine is required to exceed the current 40 percent evaluation, and the Board finds that ankylosis is not demonstrated by the evidence of record. In coming to this determination, the Board acknowledges the February 2018 private DBQ indicated the presence of ankylosis, but does not finds this assessment probative. This is because ankylosis is understood to mean "immobility and consolidation of a joint due to disease, injury, or surgical procedure," Colayong v. West,12 Vet. App. 524, 528(1999). While admittedly limited, motion of the lumbar spine was identified in the February 2018 private DBQ. This contradiction was remanded for clarification and a December 2019 VA examiner found that ankylosis was not present, a finding corroborated by the private and VAMC medical documentation and all medical reports associated with the claims file other than the February 2018 DBQ. Therefore, the Board finds that the current 40 percent evaluation from June 17, 2016 is an accurate assessment of the evidence of record. The Board notes that the assignment of a disability rating should take into account of limitation of functional ability during flare-ups or when a joint is used repeatedly over a period of time. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Notably, the VA examiners performed the required testing and made the relevant inquiries to determine how pain impacts the Veteran. At the examinations, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiner, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. The reports do not suggest that the specific findings on examination, in terms of range of motion, would change for a meaningful duration to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran's lay statements. Significantly, the VA examiners noted that the Veteran's low back was not additionally limited after observed repetitions. In addition to testing, the Veteran has been asked to describe functional loss and impairment in various situations and he has not identified that he has loss of motion to the degree required for higher ratings. The Board again acknowledges that the Veteran has pain, weakened movement and less movement than normal. This is well documented in the lay and medical evidence. Furthermore, the Board again accepts that he has functional impairment, pain and limited motion as demonstrated at the VA examinations and in statements. See DeLuca, supra. However, neither the lay nor medical evidence reflects the functional equivalent of impairment required for an evaluation in excess of the rating assigned including during a flare-up. As noted above, Diagnostic Code 5243 provides for rating disabilities of the spine under either the General Rating Formula for Diseases and Injuries of the Spine, or under the Formula for Rating IVDS, which results in the higher rating. However, there is no evidence of incapacitating episodes as contemplated by the regulation, and neither the lay nor medical evidence suggests that there has been physician prescribed bed rest. In light of the lack of evidence demonstrating any episodes requiring bed rest prescribed by a physician, the Board finds that a higher rating under the formula for rating intervertebral disc syndrome based on incapacitating episodes is not warranted. In conclusion, a preponderance of the evidence is against finding an increased rating in excess of 20 percent prior to June 17, 2016 and/or 40 percent thereafter for the Veteran's service-connected low back disability. M. E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Marcus J. Colicelli 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.