Citation Nr: 20046548 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 10-47 756 DATE: July 13, 2020 ORDER A rating of 40 percent for a lumbar spine disability is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his lumbar spine disability manifested by forward flexion of the thoracolumbar spine 30 degrees or less. 2. Throughout the period on appeal, the Veteran’s lumbar spine disability was not manifested by unfavorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria for a rating of 40 percent for a lumbar spine disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (DC) 5237. 2. The criteria for a rating higher than 40 percent for lumbar spine disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1972 to November 1976 in the U.S. Marine Corps. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before a Veterans Law Judge (VLJ) at a Board hearing in April 2014. A transcript is of record. The VLJ who presided over the hearing is no longer employed by the Board. In March 2020, the Board sent the Veteran a letter presenting him with an opportunity for another hearing; however, he has not requested another hearing. This matter was previously before the Board in October 2014 and July 2016, at which time the Board remanded the issue on appeal for further development. The case has now been returned to the Board for appellate consideration. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) was also previously before the Board. However, a TDIU was granted in full by the RO in a February 2020 rating decision. Accordingly, the issue is no longer before the Board. The Veteran contends that a higher rating is warranted for his service-connected lumbar spine disability. Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s lumbar spine disability is rated under DC 5237, which is part of the General Rating Formula for Diseases and Injuries of the Spine found in 38 C.F.R. § 4.71a. 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 assigned for forward flexion of the thoracolumbar spine of 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Notes (2), (4). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). The Veteran was afforded VA examinations in January 2009 and June 2015. However, the Board finds that these examinations are inadequate for adjudication purposes because they do not comply with the requirements under Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The Board notes that during the January 2009 VA examination, the Veteran reported that he has weekly flareups where he is unable to function. The January 2009 examiner noted that during the past 12-month period, the Veteran had one incapacitating episode for two days. The Board also notes that the Veteran reported flareups during the June 2015 VA examination, however the June 2015 VA examination findings were inconsistent with the Veteran’s lay statements and testimony at the April 2015 Board hearing. The Veteran submitted a Disability Benefits Questionnaire (DBQ) dated May 2016. The physician diagnosed the Veteran with degenerative joint disease, degenerative disc disease, and radiculopathy. The Veteran reported flareups that include difficulty with spine flexion and difficulty remaining in one position for a long time. The physician found that the Veteran had 80 degrees of forward flexion and did not find additional limitation of range of motion after repetitive-use testing. The physician stated that the Veteran had moderate spinal stiffness in the lumbar region and found that the Veteran has guarding and muscle spasm, and an abnormal spinal contour due to loss of physiological lumbar lordosis. Regarding functional loss, the physician found less movement than normal, pain on movement, and interference with sitting and standing. The physician was unable to estimate additional functional loss due to pain, during flareups, or repetitive use over time. Regarding neurological abnormalities, the physician found that the Veteran had moderate pain and mild radiculopathy in the right lower extremity, and moderate paresthesias and/or dysesthesias in the right and left lower extremities. The physician also found that the Veteran had intervertebral disc syndrome (IVDS), however the physician did not find that he had any incapacitating episodes. The Veteran submitted another DBQ dated May 2017. The physician did not review the Veteran’s claims file. The Veteran was diagnosed with degenerative joint disease, degenerative disc disease, IVDS, and colloid cyst. The Veteran reported flareups where he is unable to bend, twist, or lift anything greater than 25 pounds. The physician was unable to perform range of motion testing; however, the physician did not state why. The physician found that the Veteran has localized tenderness or pain to palpitation of joints, an abnormal gait due to muscle spasm and guarding, and an abnormal spinal contour due to guarding. Regarding functional loss, the physician found that the Veteran has less movement than normal, weakened movement, excess fatigability, and pain on movement. The physician found that the Veteran had severe right radicular pain, moderate paresthesias, and mild numbness and diagnosed the Veteran with radiculopathy in the right lower extremity. The physician did not find that the Veteran has any other neurological abnormalities. The Board notes that while the physician stated that the Veteran had incapacitating episodes over the past 12 months, the medical evidence of record does not show that bedrest was prescribed by a physician. The Veteran was afforded a VA examination in February 2020. The examiner diagnosed the Veteran with lumbosacral strain, degenerative arthritis of the spine, and lumbar radiculopathy. The Veteran reported flareups with functional loss, including difficulty twisting, bending over and picking things up, pushing on things, getting in and out of bed, sitting, running, and walking for an extended period. The VA examiner was unable to test the Veteran’s range of motion because he was in pain and could not bend more than 10 degrees. The examiner did not find ankylosis of the spine or IVDS. In addition to the medical evidence, the record also consists of lay statements. In a January 2009 Statement in Support of Claim, the Veteran stated that his back condition causes him pain and periods of incapacitation. Additionally, in November 2010, the Veteran stated that he has constant pain in his back and there are some mornings where he is unable to get out of bed. See November 2010 VA Form 9. The Veteran also testified at the April 2014 Board hearing that he has trouble bending and twisting and takes medication for muscle spasms and back pain. The Veteran also testified that his lower back condition causes incapacitating episodes where he spends 2-3 days in bed at a time and there are points where he must lay down for a few hours. In addition, the Veteran’s spouse testified that the Veteran has trouble getting off the couch. Based on the foregoing, the Board finds that the Veteran’s lumbar spine disability is consistent with a 40 percent rating. Throughout the period on appeal, the Veteran has consistently reported flareups, including pain in the lumbar spine that affects his ability to function and limits his range of motion. The Board does not find that a higher rating of 50 percent is warranted as there is no evidence showing that the Veteran had ankylosis of the thoracolumbar spine at any time during the appeal period. Accordingly, the Board finds that the criteria for a rating in excess of 40 percent for the Veteran’s lumbar spine disability are not met. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As to separate ratings for any associated neurological impairment, the Board notes that the Veteran is in receipt of awards for his radiculopathy associated with his lumbar spine disability. The medical evidence of record does not show any other neurological impairments in conjunction with the Veteran's lumbar spine disability. Additionally, there is no indication that the Veteran experiences incapacitating episodes as defined in 38 C.F.R. § 4.71a, Formula for Rating IVDS on Incapacitating Episodes, Note (1). Therefore, a rating under that formula is not warranted. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Kernen, 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.