Citation Nr: 20032498 Decision Date: 05/08/20 Archive Date: 05/08/20 DOCKET NO. 16-15 866 DATE: May 8, 2020 ORDER A rating in excess of 10 percent prior to May 4, 2015 is denied. A rating of 40 percent, from May 4, 2015 for functional scoliosis of the lumbar spine with degenerative joint disease, is granted. FINDINGS OF FACT 1. For the period prior to May 4, 2015, the Veteran’s functional scoliosis of the lumbar spine with degenerative joint disease did not show forward flexion functionally limited to 60 degrees or less or combined ranges of lumbar motion functionally limited to 120 degrees or less; and the Veteran’s lumbar spine was not shown to be productive of either muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. 2. For the period prior from May 4, 2015, the evidence is at least evenly balanced as to whether symptoms of the Veteran’s functional scoliosis of the lumbar spine with degenerative joint disease discectomy more nearly approximated forward flexion of 30 degrees or less, and symptoms did not more nearly approximate ankylosis of the entire thoracolumbar spine, or incapacitating episodes as defined in the applicable regulation. CONCLUSIONS OF LAW 1. For the period prior to May 4, 2015, the criteria for a disability rating in excess of 10 percent for functional scoliosis of the lumbar spine with degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Part 4, Diagnostic Codes 5237, 5242. 2. For the period from May 4, 2015, the criteria for a disability rating of 40 percent for functional scoliosis of the lumbar spine with degenerative joint disease have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Part 4, Diagnostic Codes 5237, 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1973 to June 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Ratings in excess of 10 percent and 20 percent for functional scoliosis of the lumbar spine with degenerative joint disease The Veteran seeks a rating in excess of 10 percent prior to May 4, 2015 and in excess of 20 percent from May 4, 2015. The Veteran’s functional scoliosis of the lumbar spine with degenerative joint disease is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237 prior to May 4, 2015 and under 5242 from May 4, 2015. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted 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 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. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. 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. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. [Include any other relevant Note(s).] When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the 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 and, if possible, with range of motion measurements of the opposite undamaged joint.” The Board notes that the spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.] The Board notes the long-time span of this appeal. It is acknowledged that some of examiners did not provide an estimated loss of motion during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). However, the Board finds that additional development solely for this purpose would serve only to delay the claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); see also Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015), cert. denied, 137 S. Ct. 33 (2016) (stating that a veteran’s interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution.). As will be expanded upon below, the examination reports contain evidence regarding the frequency, severity, and duration of the Veteran’s pain level during flare-ups per his report. The Board finds such information pertinent and useful when evaluating the disability picture concerning the Veteran’s service-connected disabilities. The Board also notes that the Veteran requested a 40 percent evaluation and the Board will be, for the large part, granting such. See 04/13/2016 Form 9. Based on all of the foregoing, the Board will proceed to the merits below.   Prior to May 4, 2015 For the period prior to May 4, 2015, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the lumbar spine disability. The Board acknowledges the Veteran’s lay reports of symptoms such as pain that radiates with increased standing. However, even considering the Veteran’s lay reports of symptoms and noted functional limitations, the degree of additional limitation would not result in limitation of motion more nearly approximately forward flexion of the thoracolumbar spine to 60 degrees or less or combined ranges of lumbar motion functionally limited to 120 degrees or less; and the Veteran’s lumbar spine was not shown to be productive of either muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. In support of this, the Board notes that a September 2013 VA examination reflects flexion to 90 degrees or greater, with flexion to 90 degrees or greater after repetitive-use testing. There was no objective evidence of painful motion on flexion or extension. There was no muscle spasm or abnormal gait. He did not report any flare-ups. Less movement than normal, pain on movement, deformity, and interference with sitting, standing and/or weight-bearing were noted to cause functional loss, functional impairment, and/or additional limitation of range of motion. At the time he worked as a mechanic. Due to pain and limited mobility he had problems with lifting, bending, pulling, and reaching. He had normal sensory and strength testing. The report also reflects no radiculopathy, to include negative straight-leg testing. The objective findings combined with the subjective complaints of the Veteran do not support a 20 percent rating for his lumbar spine disability, as even with consideration of his functional limitations forward flexion of 60 degrees or less is not shown, nor muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. In consideration of the DeLuca factors, there were no objective findings of pain, fatigue, weakness, lack of endurance, and incoordination. Based on the 2013 examination report and treatment records, the Veteran’s limitation of motion symptomatology does not more nearly approximate the criteria for higher ratings. The 10 percent in effect for limitation of motion symptomatology for the period prior to May 4, 2015 compensates him for limited and painful motion, and assigning the next higher rating for painful motion would not accurately assess the resulting function loss, even when considering the pain. The 10 percent rating takes into consideration the Veteran’s functional loss associated with his lumbar spine. The Board finds that 38 C.F.R. §§ 4.40, 4.45 and 4.59 do not provide a basis for an increased rating for this period. See DeLuca, 8 Vet. App. at 204 -07. In other words, the functional loss does not most nearly approximate the criteria for the next-higher rating. With regard to consideration of flare-ups per Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Board notes that in the September 2013 VA examination, the Veteran denied any flare-ups. There is no evidence, to include the Veteran’s own statements, from which to conclude that the disability picture during flare-ups would most nearly approximate flexion limited to 60 degrees for the period prior to May 4, 2015. As such, a rating in excess of 10 percent is not warranted. Period from May 4, 2015 A May 2015 VA examination reflects flexion to 50 degrees with pain, with no change after repetitive-use testing. The examiner noted that pain caused functional loss, but the examiner was unable to describe in terms of range of motion. The examiner explained that the primary disability was related to pain and loss of repetitive use rather than loss of range of motion. The Veteran would have additional limitation during back flare-ups, or when the back was used repeatedly over a period of time, manifested by pain and difficulty continuing back movement. He had guarding not resulting in abnormal gait or abnormal spinal contour. He did not have radiculopathy or ankylosis. He was limited in repetitive bending, repetitive lifting, and carrying. He had to delegate some of the heavy work at the auto repair shop. A VA treatment record from September 2016 shows that the Veteran reported worsening lower back pain that radiated down his right leg, foot, and heel for the past two weeks. He continued to work at an auto repair shop and was very active with bending and lifting. A July 2019 VA examination reflects flexion to 65 degrees with pain. The examiner indicated that pain caused functional loss. There was no functional loss on repetitive motion. The examiner indicated that pain, weakness, fatigability, or incoordination did significantly limit functional ability with repeated use over a period of time. The Veteran reported flare-ups about every two to three months in which he had to remain supine for two to three days. He also limited in prolonged standing, prolonged walking, or sitting. There were no objective signs of radiculopathy, only radiation of pain to hip/butt region. He did not have guarding, muscle spasm, atrophy, intervertebral disc syndrome (IVDS), or ankylosis. The Board finds that the Veteran’s functional scoliosis of the lumbar spine with degenerative joint disease most closely approximate the criteria for a 40 percent rating under the General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5235 to 5243. Here, the evidence reflects back pain, severe flare-ups, weakness, and limitation of motion after repeated use. Although the Veteran at times was able to achieve forward flexion of the thoracolumbar spine up to 65 degrees, he reported severe pain during flare-ups that limit him to his couch for several days. Resolving all doubt in the Veteran’s favor, the Board finds that the evidence shows that the Veteran’s lumbar spine disability, including his flare-ups, was of such severity and intensity as to result in additional loss of motion more nearly approximating 30 degree or less, thus warranting a disability rating of 40 percent, but not higher. With respect to the provisions of 38 C.F.R. §§ 4.40 and 4.45, in Johnston v. Brown, 10 Vet. App. 80, 85 (1997), the United States Court of Appeals for Veterans Claims (Court) determined that, if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. § 4.40 and 4.45 are applicable. In the instant case, the Veteran is receiving the maximum rating allowable under the current General Rating Formula for Diseases and Injuries of the Spine, absent ankylosis. Accordingly, 38 C.F.R. § 4.40 and § 4.45 are not for consideration. Finally, in order to warrant an evaluation in excess of 40 percent for the Veteran’s lumbar spine disability, the evidence must show unfavorable ankylosis of the entire thoracolumbar spine. Here, neither VA treatment notes nor the VA examination reports indicate that there was unfavorable ankylosis of the entire thoracolumbar spine or the entire spine for the appeal period. Rather, these documents contain specific findings of no ankylosis. He has also not had IVDS at any point during the period on appeal. Additionally, sensory examinations were normal, straight leg raising tests were negative, and no radiculopathy was indicated. As such, separate ratings are not warranted. In sum, a rating in excess of 40 percent is not warranted. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Cruz, 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.