Citation Nr: 20042846 Decision Date: 06/24/20 Archive Date: 06/24/20 DOCKET NO. 15-00 301 DATE: June 24, 2020 ORDER Entitlement to a disability rating in excess of 40 percent for degenerative disc disease of the thoracolumbar spine, also claimed as a low back strain, (herein referred to as a “lumbar spine disability”), is denied. FINDING OF FACT The evidence of record reflects that throughout the period on appeal the Veteran’s lumbar spine disability did not manifest as ankylosis, either favorable or unfavorable. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for the Veteran’s service-connected lumbar spine disability, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.71a, Diagnostic Codes 5235 to 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2002 to March 2003 and from July 6, 2005 until July 28, 2005. This appeal is before the Board of Veterans’ Appeals (Board) from a February 2013 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, the Board remanded the Veteran’s claim for an increased rating for further development. The Board finds substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Board also notes that evidence was received after the Veteran’s claim was certified to the Board; however, in her June 2020 Informal Hearing Presentation (IHP), through her representative, she submitted a waiver of AOJ consideration of new evidence The Veteran seeks a rating in excess of 40 percent for her lumbar spine disability. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). This Veteran’s service-connected lumbar spine disability is rated at 40 percent under 38 C.F.R. § 4.71(a), Diagnostic Code 5243. Disabilities of the spine are evaluated under a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). The criteria of the General Rating Formula are applied with and 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. Associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). With regard to the thoracolumbar spine, the General Rating Formula for Diseases and Injuries of the Spine (Diagnostic Codes 5235 to 5243) provides 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. Id. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. Id. When evaluating joint disabilities rated on the basis of limitation of motion, the VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, the VA must determine the overall functional impairment due to these factors. Alternatively, intervertebral disc syndrome (IVDS) is rated either under the General Rating Formula or alternatively under the Formula for Rating IVDS on Incapacitating Episodes, whichever method results in a higher disability rating. The Formula for Rating IVDS Based on Incapacitating Episodes provides a 40 percent disability rating for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent disability rating is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is defined as 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). Lastly, the Board notes the following: First, as this claim for an increased rating is a non-initial claim, the Board may examine the evidence of record up to one year prior to the filing for the claim of an increased rating. Here, the Veteran filed for an increased rating in December 2010; thus, the evidence window the Board may consider her claim begins in December 2009. Second, in May 2019 the Veteran was granted service connection and a 20 percent rating for her bilateral lower extremity radiculopathy. Third, as will be explained later in the appeal, since her bilateral radiculopathy claims are not a part of this instant appeal, those claims will not be addressed in this decision. Turning to the evidence of record, in February 2010, VA treatment records indicate she was fitted for a back brace. In October 2010, VA treatment records indicate she sought treatment for back pain and an examination revealed “normal flexion and extension of the spine.” An April 2011 VA lumbar spine imaging report revealed, “Minimal retrolisthesis of L5 on S1, unchanged. Minimal spondylosis.” In April 2012, VA treatment records indicate she sought treatment for low back pain and an examination revealed “normal flexion and extension of the spine.” In July 2012, the Veteran submitted a statement to the Board detailing the issues she experiences with her lumbar spine disability. Specifically, that if she sits for long periods of time her back stiffens up and there is a “tingling sensation that turns into an ache.” A July 6, 2012 VA treatment record indicates she has a history of low back pain, that manifests as “sharp stabbing, radiating to low back” about two to three times a month. A physical examination revealed, “TTP on Rt lumbar, Right & Left iliac, no guarding /rigidity.” A December 18, 2012 VA MRI imaging report on her thoracolumbar spine revealed the following: L3-L4: Mild bilateral facet joint hypertrophy resulting in mild narrowing of the neuroforamina, bilaterally. L4-L5: Moderate bilateral facet joint hypertrophy resulting in mild to moderate narrowing of the neuroforamina, bilaterally. L5-S1: Mild right and moderate to severe left facet joint hypertrophy resulting in mild to moderate narrowing of the neuroforamina, bilaterally. The impression and assessment sections stated, “Multilevel facet joint osteoarthropathy resulting in narrowing of the neuroforamina as described above. . . Chronic low back pain with associated segmental dysfunction complicated by degenerative changes.” In her May 2013 notice of disagreement, the Veteran provided further information to the Board relating to her lumbar spine disability. Specifically, that her lumbar spine disability worsened due to a recent diagnosis of arthritis. In January 2014, VA treatment records indicate she was referred to a chiropractor for her lower back pain. February 2014 private medical records indicate her lumbar spine “reflexes are normal and symmetric” with the following note, “ROM abnormal. Due to thoracis area.” On June 19, 2014, VA treatment records reflect she recently went to “urgent care” for treatment for her back pain, reporting that “sitting a long time” makes her pain worsen. A June 24, 2014 VA chiropractic treatment record indicates she subjectively reported pain in her “mid back that extends down to the top of her buttocks.” She further stated her pain can be “dull and achy” but can also be “sharp” with “numbness and tingling.” A physical examination determined she had a “tight lumbar” and thoracolumbar range of motion testing revealed: “Ranges of motion in flexion, extension, lateral flexion, and rotation were all in normal range without pain.” In July 2014 VA chiropractic records reveal she received treatment for her back and a physical examination revealed a “tight thoracolumbar.” An August 2014 VA treatment record indicates she received treatment for her lumbar spine disability. A physical examination revealed: Muscle strength/tone/tenderness: Myospasm of lumbar paraspinal muscles bilaterally. Thoracolumbar Range of Motion: Ranges of motion in flexion, lateral flexion, and rotation were all in normal range without pain. Extension causes midline discomfort with associated tingling down her back and into her legs. September 2014 VA chiropractic and treatment records indicate she received treatment for her lumbar spine disability. The assessment and plan stated: “Chronic low back pain with associated segmental dysfunction complicated by degenerative changes.” A December 3, 2014 VA imaging report reveals: “Possible slight loss of disc heights at T9-10 and T10-11 related to discopathy, with minimal associated endplate hypertrophy at T9-10. No fracture, listhesis or other significant DJD is evident. Mineralization is normal.” A December 4, 2014 VA thoracolumbar spine examination report included a review of the claims file, a recitation of her complaints and medical history, and physical examination results. The report noted the Veteran was recently diagnosed with “Minimal DDD and DJD thoracic spine T9-11.” The Veteran reported subjectively that her back spasms can be “devastating” because it “hurts to inhale,” and that many daily activities aggravate her back condition. Her forward flexion was rated at 40 degrees and her forward extension was rated at 20 degrees; her right lateral flexion was rated at 15 degrees and her left lateral flexion was rated at 20 degrees; and her right and left lateral rotations were measured at 30 degrees each. Pain was noted at every measurement and her total range of motion was rated at 155 degrees. The report indicated there was no evidence of pain with weight bearing and there was localized tenderness. Repetitive use testing was performed, and no additional functional loss or range of motion was noted. The Veteran was not tested for repetitive use over time. When asked if pain, weakness, fatigability or incoordination significantly affect functional ability with repeated use over a period of time, the examiner indicated “unable to say.” Specifically: All additional functional limitations and/or limitation of motion during flare-ups or repeated use of the thoracolumbar spine over time, if any, are noted under the appropriate history and/or flare-up section where this is described as fully as possible based on all available information, medical records, and the Veteran's history The Veteran was not examined during a flare-up and the report notes she experiences flare-ups monthly, with moderate severity, lasting anywhere from one day to four days. The report noted she was negative for: guarding or muscle spasms, muscle atrophy, radicular pain, ankylosis, and IVDS. Lastly, the report noted her lumbar spine disability impacts her ability to work. In January 2015, VA treatment records indicate she received treatment for “chronic back pain.” In February 2015, the Veteran’s representative submitted an IHP alleging the Veteran should be granted an increased rating because she has “increased pain and limited motion” and she experiences “incapacitating episodes.” A March 2015 VA physical therapy record indicates she reported “constant [low] back pain,” with flare-ups “once a week.” A lumbar “movement test” revealed the following: “Forward bending and return: 25% stretching/pain; Side bending: 25% stretching/pain; Back bending: 40% stretching/pain; Rotations: 25% stretching/pain.” An April 2015 VA treatment record indicated she reported lower back pain that was made worse by “sitting, bending, [and] twisting,” and a physical examination revealed, “back limited flexion and extension limited range of motion.” A June 3, 2015 VA MRI of her cervical spine revealed “multilevel degenerative changes of the lumbar and thoracic spine with moderate central canal stenosis at T6-7.” A September 2015 VA treatment record indicated she reported lower back pain that was made worse by “sitting, bending, [and] twisting,” and a physical examination revealed, “back limited flexion and extension limited range of motion.” In June 2016, she submitted two statements to the Board providing further evidence of the current state of her lumbar spine disability, including her recent lumbar degenerative disc disease diagnosis. She also claimed she experiences, “sharp pains radiating up my back,” that her pain has spread to the “upper parts of [her] back,” and that she “can no longer perform the activities that she used to.” She further reported subjective symptoms of sharp piercing pain and numbness. An August 2017 VA treatment record indicates she reported lower back pain and a review of systems revealed “stiffness/reduced [range of motion].” In September 2017, VA treatment records indicate she reported her back pain interferes with her ability to sleep. A February 2018 VA imaging report on her lumbar spine revealed, “Facet arthropathy asymmetric on the left L4-L5 and L5-S1 has progressed. Mild intervertebral disc space height loss at L3-L4 and L4-L5.” A March 2018 VA chiropractic record indicates an imaging report revealed: No paraspinous mass. No pedicle destruction. Facet arthropathy asymmetric on the left at L4-L5 and L5-S1 has progressed. Normal vertebral body heights. Mild intervertebral disc space height loss at L3-L4 and L4-L5. No traumatic subluxation. Furthermore, “active trunk motions” revealed “sidebend right 75%,” and “sidebend left [within normal limits],” and “forward bend [and] trunk extension [within normal limits].” In April 2018, VA treatment records indicate the Veteran subjectively reported “sharp nerve-like pains shooting down my back.” A May 2018 VA chiropractic record indicates she received treatment for back pain and her “active trunk motions” were all within normal limits. A July 2018 VA rehabilitation record indicates she had issues walking over an hour and active trunk motions were all measured within normal limits. A December 2018 VA thoracolumbar spine examination report included a review of the claims file, a recitation of her complaints and medical history, and physical examination results. The Veteran’s forward flexion was rated at 40 degrees and forward extension was rated at 30 degrees; her right lateral flexion was rated at 25 degrees and her left lateral flexion was rated at 20 degrees; her right and left lateral rotations were rated at 30 degrees each; and pain was noted on every test. The report also indicated she experienced pain with weight bearing and evidence of localized tenderness or pain on palpitation. The Veteran was not able to perform repetitive use testing as she was afraid it would result in increased pain. Additionally, pain, weakness, lack of endurance, and incoordination all significantly limited her functional ability. The report was conducted during a flare-up and pain, weakness, lack of endurance, and incoordination all significantly limited her functional ability, but the examiner was not able to describe in terms of range of motion. The report was negative for guarding or muscle spasms and positive for bilateral lower extremity radiculopathy with no other radicular symptoms. The report was also negative for ankylosis, but positive for IVDS without any physician prescribed bed rest in the past 12 months. In the remarks section, the examiner performed a Correia test which revealed: [1] Evaluation of bilateral joints for comparison is required. If evaluation of the contralateral joint is not possible or not medically appropriate, please provide an explanation. Yes, pain for thoracic and lumbar spine, it radiated BL LEs tingling and numbness intermittently per vet. [2] Pain with non-weight bearing (at rest)? Yes, pain for thoracic and lumbar spine. [3] Causes functional loss. Please describe: Yes, pain for thoracic and lumbar spine. [4] Pain with weight bearing? Yes, pain for thoracic and lumbar spine. [5] Pain with passive ROM? Cannot be performed or is not medically appropriate. Yes, pain for thoracic and lumbar spine. [6] Is the contralateral joint uninjured / normal? NO, pain for thoracic and lumbar spine. Yes, pain for thoracic and lumbar spine, it radiated BL LEs tingling and numbness intermittently per vet. On December 21, 2018 the Veteran’s spouse wrote a statement to the Board providing further details of the Veteran’s lumbar spine disability. On March 15, 2019 the Veteran sought treatment for lower back pain and a physical examination revealed, “point tenderness to lumbar area.” A March 25, 2019 VA imaging report on the Veteran’s lumbar spine revealed: The level designated as T12 has left greater than right hypoplastic ribs on the radiographs. No acute fracture traumatic subluxation. Normal disc spinal cord signal with conus as T12-L1. No suspicious marrow replacing lesion . . . L4-L5 Stenosis of the exiting L4 nerve roots. Circumferential disc bulge. Facet arthropathy and ligamentum flavum hypertrophy . . . L5-S1: Stenosis of the exiting L5 nerve roots. Circumferential disc bulge. Facet arthropathy asymmetric on the left . . . Impression: Degenerative disc disease and facet arthropathy has not significantly progressed since June 2015. A January 6, 2020 VA treatment record indicates she sought treatment for her lower back and her lumbar spine was “Nontender. No paraspinal tenderness. Left SI joint is tender. No saddle paresthesia.” On January 7, 2020 she met with a VA neurosurgeon for a consultation on options moving forward for her lower back pain. A January 30, 2020 VA lumbar spine CT scan revealed: 5 non rib-bearing vertebral bodies. The lowest fully formed intervertebral disc space is designated as L5-S1. Bilateral osteitis condensans ilii appears grossly unchanged since July 2008. No acute fracture or traumatic subluxation. Punctate calcification in the right renal collecting system may represent a nonobstructing stone. Mild atherosclerosis. T12-L1: No significant osseous neuroforaminal stenosis. L1-L2: No significant osseous neuroforaminal stenosis. L2-L3: No significant osseous neuroforaminal stenosis. L3-L4: Trace retrolisthesis. Mild bilateral neuroforaminal stenosis. Mild facet arthropathy. L4-L5: Trace retrolisthesis. Facet arthropathy asymmetric on the left with vacuum phenomena. Left greater than right neuroforaminal stenosis. L5-S1: Facet arthropathy asymmetric on the left. Left greater than right neuroforaminal stenosis. Impression: 1. Prominent facet arthropathy at L4-L5 and L5-S1 asymmetric on the left. 2. Grossly stable bilateral osteitis condensans ilii. An addendum opinion states: “L-CT shows L4/5, L5/S1 facet arthropathy, Lt L5/S1 foraminal stenosis. I recommend facet joint injection or SI joint injection. EMG is pending. Surgery should be considered as a last resort.” A March 2, 2020 addendum opinion states, “There is no electrophysiological evidence of lumbosacral radiculopathy based on no acute or chronic denervation. However, the sensitivity of EMG for radiculopathy is about 70%. Clinical correlation is suggested.” In June 2020, the Veteran’s representative submitted an IHP which detailed the Veteran’s December 2018 VA examination. After careful consideration of the claims file, the Board concludes that the preponderance of the evidence is against finding that the Veteran's lumbar spine disability warrants a disability rating in excess of 40 percent. To meet the requirements of a 50 percent evaluation under Diagnostic Code 5242, the Veteran must be diagnosed with ankylosis, either favorable or unfavorable, of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. However, her most recent VA examination in December 2018 did not diagnose the Veteran with ankylosis, either favorable or unfavorable. Furthermore, the evidence of record does not contain any evidence of an ankylosis diagnosis at any time. The Board has also considered whether a higher disability rating is warranted if her lumbar spine disability more closely resembles ankylosis as a result of additional functional loss due to pain, weakness, fatigability, incoordination, and other factors. DeLuca, 8 Vet. App. at 204-07. The Board notes ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. 38 C.F.R. § 4.71a, nt. 5 (defining ankylosis as fixation of a joint in a particular position). Although the Veteran was unable to perform repetitive use testing at her December 2018 VA examination, she was still able to perform range of motion testing implying her back was not fixated in a particular position. Additionally, the VA examiner did not indicate the Veteran’s lumbar spine disability manifested as the functional equivalent of ankylosis. Furthermore, the evidence of record is devoid of any such evidence to support her contentions. As such, the Board finds that the evidence weighs against a finding of the functional equivalent of ankylosis. See DeLuca, 8 Vet. App. at 204-07. For these reasons, the Board finds that an evaluation in excess of 40 percent is not warranted under DC 5242. The Board has also considered whether the Veteran might be entitled to a higher evaluation under the ratings criteria for IVDS found in Diagnostic Code 5243. To receive a 60 percent disability rating under Diagnostic Code 5243 requires incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Although in February 2015 her representative claimed she experienced incapacitating episodes, there are no medical records to support her contention. Furthermore, although her December 2018 VA examination noted she was positive for IVDS, there was no evidence of any physician prescribed bed rest in the past 12 months. Additionally, the evidence of record does not contain any competent or credible medical evidence to support her contentions. As such, an increased rating is not warranted for IVDS under DC 5243. When evaluating the extent of the Veteran's lumbar spine disability, the Board is required to consider whether a separate evaluation is warranted for any associated neurological abnormalities. See 38 C.F.R. § 4.71(a). However, as the Veteran is separately rated for her bilateral lower extremity radiculopathy and her claims for an increased rating are not a part of this current appeal, they will not be addressed in this decision. In conclusion, the evidence of record does not support the assignment of an evaluation in excess of 40 percent for the Veteran's service-connected lumbar spine disability. To the extent that any higher level of compensation is sought, the preponderance of the evidence is against the claim. Hence the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Accordingly, the Veteran's claim for a disability rating in excess of 40 percent for a service-connected lumbar spine disability is denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Law Clerk, Tyler R. Masters 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.