Citation Nr: 20041995 Decision Date: 06/19/20 Archive Date: 06/19/20 DOCKET NO. 15-26 812 DATE: June 19, 2020 ORDER Entitlement to an initial evaluation for degenerative disc disease of the lumbar spine in excess of 10 percent prior to May 13, 2019, and in excess of 20 percent thereafter, is denied. FINDINGS OF FACT 1. Prior to May 13, 2019, the Veteran’s degenerative disc disease of the lumbar spine was not manifested by forward flexion limited to 60 degrees or less; a combined range of motion limited to 120 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour; ankylosis; or any incapacitating episodes. 2. From May 13, 2019, the Veteran’s degenerative disc disease of the lumbar spine was not manifested by forward flexion of 30 degrees or less; ankylosis; or any incapacitating episodes. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for degenerative disc disease of the lumbar spine disability for the period prior to May 13, 2019, and in excess of 20 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from July 1979 to January 1987. The Board previously remanded this case for additional development in July 2018. The matter has now returned to the Board for appellate review. In May 2020, the Agency of Original Jurisdiction (AOJ) issued a rating decision and supplemental statement of the case (SSOC) granting an increase of the evaluation of degenerative disc disease of the lumbar spine from 10 percent disabling to 20 percent disabling from May 13, 2019. The issue remains in appellate status as the maximum schedular rating has not been assigned from the date of claim. See AB v. Brown, 6 Vet. App. 35 (1993). Separate ratings for radiculopathy into the legs have been established and are not at issue herein. The rating on appeal is for orthopedic impairment of the back. Entitlement to an initial evaluation for degenerative disc disease of the lumbar spine in excess of 10 percent prior to May 13, 2019, and in excess of 20 percent thereafter The Veteran’s degenerative disc disease of the lumbar spine is rated as 10 percent disabling prior to May 13, 2019, and at 20 percent disabling thereafter pursuant to Diagnostic Code 5243. The Veteran seeks a higher evaluation for the entire period on appeal. Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as in the present case, entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a “staged rating” (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate 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, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain, whether or not it radiates, stiffness, or aching in the area of the spine affected by the 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, the combined range of motion of the thoracolumbar spine not greater than 120 degrees but not greater than 235 degrees; or, muscle spasm or guarding or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation 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 evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine is evaluated as 50 percent disabling, and unfavorable ankylosis of the entire spine is evaluated as 100 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. Diagnostic Code 5243 evaluates intervertebral disc syndrome (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under §4.25. Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes: With incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months, a 10 percent rating is warranted. With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months, a 20 percent rating is warranted. With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, a 40 percent rating is warranted. With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, a 60 percent rating is warranted. Note (1): For purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Turning to the record, the Veteran was afforded a VA examination in August 2012. A diagnosis of moderate lumbar degenerative disc disease with sciatica was rendered. The Veteran reported recurrent mild lower back pain since the late 1980s. He now has constant pain and radiculopathy to posterior bilateral thighs lasting a few seconds. Range of motion testing revealed forward flexion limited to 65 degrees and extension limited to 20 degrees. Functional loss due to the Veteran’s spine disability is described as weakened movement and pain on movement. On physical examination, the Veteran exhibited pain on palpation over the lumbosacral area. There was no evidence of guarding or muscle spasms. Muscle strength testing was normal. Nor was there evidence of atrophy or ankylosis. Deep tendon reflexes were hypoactive from the knee bilaterally and sensory examination was normal. Intervertebral Disc Syndrome (IVDS) was identified and the Veteran confirmed incapacitating episodes over the past 12 months lasting at least one week, but less than two weeks. Diagnostic testing revealed arthritis. Next, the Veteran was afforded another VA examination in May 2015 to assess the severity of his service-connected lumbar spine disability. The Veteran reported flare-ups prevented him from walking, standing, or sitting for a long time. Range of motion testing revealed forward flexion limited to 75 degrees and extension to 25 degrees. The examiner noted that pain decreases the Veteran’s range of motion. Physical examination revealed pain on palpation and localized tenderness. There was evidence of guarding or muscle spasms resulting in abnormal gait or abnormal spinal contour. Muscle strength testing was normal. There was no evidence of atrophy or ankylosis. Deep tendon reflexes were hypoactive bilaterally from the knee. IVDS was identified, but the Veteran did not have any episodes of acute signs or symptoms due to IVDS that required bed rest prescribed by a physician in the prior 12-month period. Diagnostic testing revealed arthritis. VA treatment records reveal the Veteran received chiropractic services for his lumbar spine disability. In May 2015, the provider noted that the Veteran had minimally restricted thoracic motion. Physical assessment showed improving flareup of chronic low back spinal pain with sacroiliac joint dysfunction and underlying degenerative disc disease. In accordance with the Board’s July 2018 remand, the Veteran was afforded another VA examination May 2019. The examiner confirmed a diagnosis of degenerative arthritis of the spine and IVDS. The Veteran reported constant pain and stiffness with radiculopathy. Range of motion testing revealed forward flexion limited to 50 degrees and extension limited to 15 degrees. Evidence of guarding was noted, but it did not result in abnormal gait or abnormal spinal contour and there was no evidence of muscle spasms. Muscle strength testing was normal. There was no evidence of muscle atrophy or ankylosis. Deep tendon reflexes and sensory examinations were normal. IVDS was present, however the Veteran did not have any episodes that required bed rest prescribed by a physician in the past 12 months. Diagnostic testing confirmed arthritis. Due to the Veteran’s spine disability, the examiner noted, the experiences limitations such as the inability to sit or stand for prolonged periods of time. Based on the evidence, the Board finds that prior to May 13, 2019, the symptomatology of the Veteran’s lumbar spine disability is more nearly approximated by 10 percent rating criteria under the Diagnostic Code 5243. Specifically, at no point was the Veteran limited to forward flexion of 60 degrees of motion or a combined thoracolumbar range of motion of less than 120 degrees. At most, the Veteran was limited to 75 degrees of forward flexion and 140 degrees of combined motion. While there was a brief finding of abnormal gait in 2015, that appears to have resolved flowing chiropractic treatment, and is not thereafter mentioned. From May 13, 2019, the Board finds that the symptomatology of the Veteran’s lumbar spine disability is more nearly approximated by 20 percent rating criteria under the Diagnostic Code 5243 because his forward flexion decreased to 50 degrees. A higher evaluation would be warranted if the forward flexion was 30 degrees or less or if there was favorable ankylosis of the entire thoracolumbar spine. The Veteran has no ankylosis. The Board has also considered whether the Veteran’s back disability resulted in a level of functional loss greater than that already contemplated by the assigned ratings for these periods. DeLuca, 8 Vet. App. at 206; 38 C.F.R. §§ 4.40, 4.45. Functional loss due to pain is rated at the same level where functional loss is impeded. Stated another way, a range of motion may be possible beyond the point when pain sets in, but for rating the disability, only to the extent pain limits motion is considered. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). While the Veteran complains of pain throughout the range of motion of his lumbar spine, the objective evidence of record indicates such pain does not limit the Veteran’s functional range of motion except as discussed above and does not serve as a basis for an initial evaluation greater than those assigned above. Further, the evidence does not reflect that the Veteran experienced any incapacitating episodes requiring bed rest and treatment by a physician for the requisite duration at any time during the appeal period. To receive a higher rating for incapacitating episodes, the Veteran must have a total duration of at least two weeks or more, that requires bed rest prescribed by a physician and treatment by a physician. Therefore, the criteria for a higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes have not been met. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Board acknowledges the Veteran’s contentions that his service-connected lumbar spine disability warrants an increased evaluation. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to psychiatric disorders, to include lumbar spine disability, as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1) (2018). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.71a with respect to determining the severity of his service-connected lumbar spine disability. See Moray v. Brown, 5 Vet. App. 211, 214 (1993); see also Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran’s statements are consistent with the ratings assigned. The occurrence of pain and increased difficulty while performing physical activities are not additional symptoms, but rather the practical effect of the symptoms of pain and limited range of motion which have been clinically observed and measured in the Veteran’s medical records. Consequently, the Board finds examinations conducted by trained medical professionals are more probative in determining the severity of the Veteran’s service-connected lumbar spine disability. In sum, the preponderance of the evidence establishes that the Veteran’s service-connected lumbar spine disability warrants no higher than a 10 percent rating for the period prior to May 13, 2019, and no higher than 20 percent thereafter. As such, the reasonable doubt doctrine is not for application. 38 U.S.C. § 5107 (b). MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Scanlan, 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.