Citation Nr: 20045092 Decision Date: 07/07/20 Archive Date: 07/07/20 DOCKET NO. 18-38 677A DATE: July 7, 2020 ORDER Entitlement to a rating in excess of 40 percent for degenerative disc disease of the lumbar spine is denied. FINDING OF FACT For the entire period on appeal, the preponderance of the evidence shows that the Veteran’s lumbar spine disability has not resulted in unfavorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes having a total duration of at least six weeks during the past twelve months. CONCLUSION OF LAW From August 11, 2010, the entire period on appeal, the criteria for a rating in excess of 40 percent for a lower spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243. REFERRED CLAIM On the April 2015 Notice of Disagreement (NOD), the Veteran sought a 100 percent disability evaluation due to a second lumbar fusion surgery. This NOD was deemed invalid because it was not signed, yet it was later accepted. However, the contention that the Veteran should be awarded a 100 percent disability rating for the period of time in the hospital was not addressed by the VA Regional Office (RO). Private treatment records show that the Veteran was hospitalized to undergo a lumbar fusion on April 9, 2015. There are no records to indicate how long the Veteran was hospitalized, however the surgeon submitted, on behalf of the Veteran, an application for special monthly compensation (SMC) based on the need for regular aid and attendance. As this matter has not been adjudicated by the Agency of Original Jurisdiction (AOJ), it is referred to the AOJ for appropriate action. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1979 to February 1999. The Veteran was service connected for a lumbar spine disability in May 1999 and given a 10 percent rating. He filed a claim for increased rating in October 2003. After an examination, VA increased his lower back rating to 20 percent in March 2004. The effective date was September 26, 2003, based on a change in the rating criteria. As new and material evidence was not received within the one-year period following notification of the decision, and the Veteran did not initiate an appeal of the decision by filing a notice of disagreement, the decision became final. See 38 U.S.C. § 7105(b), (d); 38 C.F.R. §§ 20.302, 20.1103. In August 2010, the Veteran filed to reopen the claim and be reevaluated for his back condition, citing new VA and private treatment records. The Veteran was told his claim could not be reopened due to an untimely filed NOD. In August 2018, VA received notice that the Veteran chose to participate in VA’s test program, the Rapid Appeals Modernization Program (RAMP). The Veteran selected the Higher-Level Review lane when he submitted the RAMP election form. The request to participate in RAMP was denied, however, the claim was subsequently continued in August 2018, as a legacy claim, and the Veteran was issued a Supplemental Statement of the Case (SSOC) and the claim was certified to the Board of Veteran’s Appeals (Board) in May 2020. Increased Rating Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other 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. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Entitlement to an increased rating for degenerative disc disease of the lumbar spine. The Veteran’s service-connected lumbar spine DDD is rated as 40 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5242, effective from August 11, 2010. This rating contemplates all loss of motion and spasm-related symptoms. There are limited bases for a higher schedular rating. Under the General Rating Formula for spine disorders (38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242), a 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine, while a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Ankylosis represents complete immobility of the joint in a fixed position, either favorable or unfavorable. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992). Under Diagnostic Code 5243, concerning intervertebral disc syndrome (IVDS), a 60 percent disability rating for IVDS is warranted for incapacitating episodes (i.e., acute signs and symptoms requiring physician-prescribed bed rest) having a total duration of at least 6 weeks during the past 12 months. The Board has reviewed the evidence of record, specifically to include VA examinations for back or spine conditions from October 2010, February 2015, and December 2019, as well as private treatment records. These examinations and other evidence revealed no evidence of ankylosis of the lumbar spine, or of acute signs and symptoms requiring physician-prescribed bed rest having a total duration of at least six weeks during the past 12 months. There is accordingly no basis for a higher evaluation. In so finding, the Board has considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. The Board has also considered Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). However, the Veteran is already assigned the maximum schedular evaluation available for limitation of motion of his thoracolumbar spine disability, and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). The provisions of 38 C.F.R. §§ 4.40, 4.45, and, are therefore not applicable for this period. As a result, the holdings in Correia DeLuca and Sharp also do not apply in this case. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Nelson, 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.