Citation Nr: 20043872 Decision Date: 06/30/20 Archive Date: 06/30/20 DOCKET NO. 10-01 039 DATE: June 30, 2020 ORDER Entitlement to a rating in excess of 40 percent for service-connected degenerative disc disease, lumbosacral spine (lumbar spine disability) is denied. FINDING OF FACT At no point during the appeal period was the Veteran’s service-connected lumbar spine disability been manifested by unfavorable ankylosis of the entire thoracolumbar spine, unfavorable ankylosis of the entire spine, or intervertebral disc syndrome (IVDS) of the thoracolumbar spine resulting in incapacitating episodes with a duration of at least 6 weeks during a 12-month period. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for service-connected lumbar spine disability are not met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code 5243 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1965 to December 1967. The Veteran passed away in May 2019, and his surviving spouse has been recognized as the substitute Appellant in this appeal. Increased Rating – Lumbar Spine Disability Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. § Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the 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. Reasonable doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. A veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). 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). Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. 38 C.F.R. § § 4.40. When evaluating joint disabilities rated on the basis of limitation of motion, 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. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2014); DeLuca v. Brown, 8 Vet. App. 202 (1995). 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. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id. (quoting 38 C.F.R. § 4.40). 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. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Prior to his passing, the Veteran’s lumbar spine disability was rated as 40 percent disabling under Diagnostic Code 5243. All spine disabilities are rated, primarily, pursuant to the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § § 4.71a. Under the General Rating Formula, a 50 percent rating is warranted when unfavorable ankylosis of the entire thoracolumbar spine is present. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Id. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Dorland’s Illustrated Medical Dictionary 94 (32th ed. 2012); see also 38 C.F.R. § § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5) (defining ankylosis as fixation of a joint in a particular position). The Notes following the General Rating Formula provide further guidance for rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Alternatively, the Formula for Rating IVDS Based on Incapacitating Episodes provides a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. Pertinent evidence of record includes the Veteran’s VA treatment records, private treatment records, the Veteran’s lay statements, and VA examination reports from January 2009, November 2009, December 2010, March 2015, May 2017, and April 2019. In a December 2008 statement, the Veteran stated that he experienced back pain. He stated that he could not stand, sit, lay down, or walk for long periods of time, and he experienced spasms. He also reported periods of imbalance, falling, aching pain, and stiffness. In January 2009, the Veteran underwent a VA examination, and he reported constant low-grade pain with intermittent spasms. He also reported that he experienced heat in his low back, and that his pain was exacerbated by prolonged standing and sitting. Although he experienced difficulty with walking, the Veteran denied any incapacitating episodes. He stated that his activities of daily living were impacted by his lumbar spine disability, and that he could not take many trips because prolonged sitting aggravated his back. He stated that he had a hard time keeping up with his yardwork, that he had problems getting out of bed. He reported flare-ups that occurred two times a day, when he would experience pain or stiffness, as well as limited range of motion. Upon examination, the Veteran’s range of motion was as follows: flexion to 60 degrees without pain, and flexion to 75 degrees with pain; extension to 15 degrees with end of motion pain; bilateral lateral flexion to 10 degrees without pain, and 20 degrees with pain end of motion pain; and bilateral lateral rotation to 30 degrees with end of motion pain. Range of motion was not further limited following repetitive use. His right lower extremity was amputated below the knee, there was a spasm in the lumbar spine, his gait was antalgic, and there were no other motor deficits in the lower extremities. X-rays revealed severe loss of disc height at L4-L5 and L3-L4. There were also sclerotic changes involving the L4-L5 endplates. A July 2009 private treatment record noted that palpation of the Veteran’s spine revealed no midline tenderness or step-off, and the there was a mild appreciated segmental restriction on flexion and extension, as well as lateral rotations. In November 2009, the Veteran underwent another VA examination, and he reported low back pain all day, every day. He rated the pain as a seven out of 10, and he stated that aggravating factors included prolonged standing and activity. He also reported problems sleeping, as well as radiating pain down his bilateral lower extremities. He denied any incapacitating episodes over the last twelve months. The Veteran denied that his activities of daily living had been affected by his lumbar spine disability, and he denied flare-ups. Upon examination, the Veteran’s range of motion was as follows: flexion to 63 degrees; extension to 10 degrees with end of motion pain; bilateral lateral flexion to 20 degrees; and bilateral lateral rotation to 30 degrees. Pain was evident throughout range of motion testing, but range of motion was not further limited following repetitive use. There was diffuse tenderness, but no spasm. Straight leg raise testing was negative, and there was no evidence of abnormal kyphosis, sclerosis, or lordosis. A November 2010 private treatment record noted that the Veteran had been involved in an automobile accident in August 2010, and that he sustained injuries as a result. The Veteran reported low back pain as a result, as well as problems with standing and performing daily chore activities at home. The treatment provider noted that the Veteran’s active and passive range of motion in the lumbar spine was severely restricted, although the precise range of motion measurements were not provided. In a separate November 2010 private treatment record, it was noted that the Veteran’s left lateral flexion was 8 degrees, and his right lateral flexion was 10 degrees; his dorsolumbar rotation was 10 degrees bilaterally; his thoracolumbar extension was four degrees, and his flexion was 12 degrees. In December 2010, the Veteran underwent another VA examination, and he reported daily sharp pain. He stated that he had not experienced any incapacitating episodes and his physician had not prescribed best rest. His disability affected his ability to walk, as he was only able to take 30 steps before needing to rest. He reported some pain in his buttocks region, but it did not radiate to his legs. Upon examination, the Veteran’s range of motion was as follows: flexion to 45 degrees; extension to 0 degrees; bilateral lateral flexion to 10 degrees; and bilateral lateral rotation to 10 degrees. He had no spasms, but there was some tenderness in the paraspinal musculature. The examiner noted that an MRI from March 2010 revealed degenerative stenosis involving the central spine, as well as intervertebral nerve root canals at L3-L4 and L4-L5. In June 2011, the Veteran testified before the undersigned Acting Veterans Law Judge, and he reported that his lumbar spine disability interfered with his ability to perform activities of daily living, including household chores and bathing. In March 2015, the Veteran underwent another VA examination. Although he denied flare-ups, he expressed difficulty with bending and lifting, as well as problems with prolonged standing. Upon examination, the Veteran’s range of motion was as follows: flexion to 70 degrees; extension to 0 degrees; bilateral lateral flexion to 30 degrees; and bilateral lateral rotation to 30 degrees. Pain was noted throughout range of motion testing, but there was no evidence of pain with weight bearing. Following repetitive-use testing, the Veteran’s flexion was further limited to 50 degrees. The examiner also indicated that the Veteran’s flexion would likely be limited to 50 degrees after repetitive use over time. The examiner then noted that there was no ankylosis of the spine and, although the Veteran had IVDS, there were no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician. In May 2017, the Veteran underwent another VA examination, and he reported constant pain in his lower back, as well as worsening pain with walking and standing. He also reported flare-ups with excessive use, and he described his functional impairment as an inability to walk excessively. Upon examination, the Veteran’s range of motion was as follows: flexion to 70 degrees; extension to 0 degrees; bilateral lateral flexion to 15 degrees; and bilateral lateral rotation to 15 degrees. Pain was noted throughout range of motion testing, but it did not cause functional loss, and there was evidence of pain with weight bearing. The Veteran was unable to perform repetitive-use testing due to pain. Additional factors contributing to the Veteran’s disability included less movement than normal due to ankylosis, adhesions, etcetera; disturbance of locomotion; interference with sitting; and interference with standing. Later in the examination, the examiner specifically noted that the Veteran did not have ankylosis of the spine and, although he had IVDS, there were no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician. In April 2019, the Veteran underwent another VA examination, and the examiner noted the diagnosis of degenerative arthritis of the spine. He reported pain in his back, and he stated that he was unable to stand or walk. He stated that his back was always hurting and that it never relented. Upon examination, the Veteran’s range of motion was as follows: flexion from 20 degrees to 30 degrees; fixed extension at 20 degrees; bilateral lateral flexion to 10 degrees; and bilateral lateral rotation to 10 degrees. Pain was noted throughout range of motion testing, and it caused functional loss. There was also evidence of pain with weight bearing. The Veteran was unable to perform repetitive-use testing due to pain. Although the examiner noted that the Veteran experienced flare-ups, his estimated range of motion was consistent with the range of motion displayed during the examination. The examiner then noted that there was evidence of guarding resulting in abnormal gait or spinal contour. Additional factors contributing to the Veteran’s disability included less movement than normal due to ankylosis, adhesions, etcetera; deformity; instability of station; disturbance of locomotion; interference with sitting; and interference with standing. Later in the examination, the examiner noted that the Veteran had favorable ankylosis of the entire thoracolumbar spine, but that he did not have IVDS. After a careful review of all the evidence, the Board finds that, at no time during the pendency of the appeal, did the Veteran’s service-connected lumbar spine disability more nearly approximate the criteria for a higher rating under any applicable diagnostic codes. Initially, with regard to the General Rating Formula, the evidence of record failed to demonstrate that he experienced unfavorable ankylosis of his thoracolumbar spine or the entire spine. As such, he is not entitled to a disability rating in excess of 40 percent for his lumbar spine disability under the General Rating Formula. In this regard the April 2019 VA examiner specifically determined that only favorable ankylosis was present and, although the May 2017 VA examiner specifically indicated that additional factors contributing to the Veteran’s disability included less movement than normal due to ankylosis, adhesions, etcetera, the Board notes that later in the examination report, the examiner specifically noted that ankylosis was not present at that time. Furthermore, there is no indication of ankylosis, favorable or unfavorable, in the prior examination reports of records, especially considering that the Veteran was always able to perform initial range of motion testing. Additionally, although many VA examination reports indicated that the Veteran suffered from IVDS, there is nothing in the records to suggest that the Veteran experienced incapacitating episodes that the required prescribed bed rest. Indeed, during these examinations, the Veteran specifically denied as much. Finally, there is nothing in the Veteran’s VA and/or non-VA treatment records that suggests that his IVDS resulted in incapacitating episodes having a total duration of at least six weeks requiring bed rest prescribed by a physician. Thus, at no point during the pendency of the appeal has IVDS of the lumbar spine disability resulted in incapacitating episodes have a total duration of at least six weeks, the criteria for a higher rating under Diagnostic Code 5243. Insofar as the evidence of record may fail to adequately address the extent of the Veteran’s disability during flare ups or following repetitive use, the Board notes that, while VA must in some circumstances consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination, see DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); 38 C.F.R. § §§ 4.40, 4.45, 4.59 (2019), this rule does not apply when, as here, the Veteran is receiving the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Moreover, in this case, the Veteran did not claim that his flare-ups were of such frequency, duration and severity to cause immobility (ankylosis) of either the thoracolumbar spine in an unfavorable position, or the entire spine in an unfavorable position, and the medical evidence includes no suggestion that unfavorable ankylosis has ever existed. As such, the Board finds that the criteria for a rating in excess of 40 percent disability rating are not met. 38 C.F.R. §§ 3.400, 4.71a, Diagnostic Codes 5237, 5242. The Board also finds that, at no time during the appeal period has the Veteran’s lumbar spine disability resulted in any neurological manifestations, such as a bowel or bladder impairment, for which service connection has not already been granted. In this regard, separate compensable ratings had been granted for bilateral lower extremity radiculopathy associated with his lumbar spine disability in a May 2018 rating decision. The Veteran did not indicate disagreement with the assigned ratings or effective dates. In sum, the Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for the Veteran’s service-connected lumbar spine disability. Because the preponderance of the evidence is against a higher rating at any point during the appeal, the benefit-of-the-doubt doctrine is not applicable, and the appeal is denied. See 38 U.S.C. § § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). SONJA A. MISHALANIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Springer, 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.