Citation Nr: 21003340 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 12-07 047 DATE: January 21, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the lumbar spine (lumbar spine disability) is denied. FINDING OF FACT The Veteran’s lumbar spine disability is manifested by loss of forward flexion of the thoracolumbar spine at no worse than 65 degrees during flare ups or repeated use, stiffness, excess fatigability, and functional impairment from pain on motion during repeated use or during flare ups. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for degenerative joint disease of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (DCs) 5235-5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from November 1983 to August 1986. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision issued by a VA Regional Office (RO). By way of background, this matter has been remanded previously in October 2014, July 2016, and September 2017. As part of these remands, the Agency of Original Jurisdiction (AOJ) was directed to further develop the claim at issue in this appeal. First, in October 2014, the matter was remanded to obtain a current VA examination. Then, the Board remanded this claim again in July 2016 for further development, to include obtaining outstanding VA treatment records. Again, in September 2017, the Board remanded the claim for additional development, to include resolving conflicting medical reports regarding the presence or lack thereof of lumbar spine ankylosis. Most recently, in January 2020, the Board once again remanded the Veteran’s claim for further development to include providing the Veteran an opportunity to identify and provide an authorization and release for any private medical records. Specifically, to obtain updated and/or outstanding records from Dr. D.R., Dr. A.F., and Dr. J.A. as well as any other outstanding private medical records. In response, the VA sent a letter dated January 15, 2020 to the Veteran’s current address of record asking for him to provide the above authorization and release or to simply submit the evidence personally. Afterwards, the Veteran’s representative submitted an updated medical record from Dr. A.F. however, as of the date of this decision, no further response to the VA’s request has been received. The VA has a duty to assist the Veteran in obtaining information, and the Veteran has a duty on his part to cooperate with VA in developing a claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that "[t]he duty to assist is not always a one-way street"). VA's duty must be understood as a duty to assist the Veteran in developing his claim, rather than a duty on the part of VA to develop the entire claim with the Veteran performing a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). In this instance, the Veteran must aid in the development of his claim by providing the information as requested. If the Veteran fails to do so, his claim will be decided based on the evidence of record. See 38 C.F.R. § 3.655. At the outset, the Board finds that the VA’s duty to assist has been met. The Board further notes, neither the Veteran nor the representative has raised contentions regarding notice or assistance. Accordingly, the duty to notify and assist will not be further addressed. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the veteran fails to raise them before the Board."). The Board’s January 2020 remand also directed the RO to schedule the Veteran for a new VA examination for his lumbar spine disability to determine the current nature and severity of the disability to include any associated neurological abnormalities. In response, the Veteran was provided a VA examination in February 2020, which included a thorough discussion of the Veteran’s disability, limited range of motion on repeated use and during flare ups as well as providing clarity as to the presence of lumbar spine ankylosis. A review of the claims file now shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Thereafter, in a July 2020 rating decision, the RO granted service connection for left lower extremity radiculopathy of the sciatic nerve at 20 percent disabling effective March 1, 2018. A supplemental statement of the case was also issued by the RO denying the request for a disability rating in excess of 10 percent for the Veteran’s lumbar spine disability. It is further worth noting that while the Veteran has indicated various work-related alterations due to his service connection conditions, he has never alleged his lumbar spine disability has precluded substantially gainful employment. Indeed, the Veteran has filed a separate claim for TDIU in May 2019 claiming that his depressive disorder, rated at 70 percent disabling, was the cause of his unemployment. This claim was subsequently denied and is currently on appeal at the RO level in the Higher-Level Review docket. It is also noted, the Veteran voluntarily left his former employer and moved to Florida in 2018 citing his depressive disorder. Thus, the Board finds a claim seeking a total disability rating based on individual unemployability (TDIU) was not reasonably raised as part of the pending lumbar spine disability claim and it will not be further addressed here. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Rating The Veteran contends that his lumbar spine disability is entitled to a higher rating for his disability and resulting symptoms are worse than currently rated. The Veteran’s lumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242 for degenerative arthritis of the spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 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 warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the lumbar spine (lumbar spine disability) is denied. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran’s lumbar spine disability. Based on the lay and medical evidence in the claims file, the Veteran’s lumbar spine disability does not warrant a rating in excess of 10 percent. The Veteran was most recently afforded a VA examination in February 2020 where the examiner noted the diagnosis of degenerative arthritis of the spine but also reported the additional diagnosis of lower left extremity lumbar radiculopathy and intervertebral disc syndrome (IVDS). The examiner further noted that the Veteran’s reported symptoms have gotten worse since their onset in 1984 resulting in range of motion and ability to do activities have worsened. The Veteran currently reported lower back pain and numbness in his left shin. However, the Veteran denied experiencing flare-ups or functional impairment. With regard to range of motion, the Veteran’s forward flexion on initial range of motion was measured at 80 degrees out of 90 degrees. No pain was noted upon range of motion testing and there was no objective evidence of pain on palpation nor with weight bearing. The examiner reported that there was no additional loss of function or range of motion after repetitive use testing. Upon repetitive use over time, the examiner noted no pain, weakness or incoordination as limiting functional ability. Throughout the examination, the examiner noted that the Veteran’s range of motion stayed the same as indicated on initial testing. The examiner reported there was no evidence of guarding or muscle spasm. Muscle strength testing was normal with no reported muscle atrophy. Straight leg raising tests were negative. However, the examiner noted the Veteran having moderate numbness in his left lower extremity indicating radiculopathy. The examiner further indicated that the Veteran had no further signs or symptoms of radiculopathy other than numbness. There was no evidence of ankylosis of the spine nor were there any other neurologic abnormalities reported. The examiner further diagnosed the Veteran with IVDS however, there were no reported episodes of acute signs and symptoms that required bed rest in the past year. The examiner also noted no evidence of pain on non-weight bearing nor with passive range of motion with range of motion staying the same as on initial testing. The Veteran also was not noted to use or require an assistive device because of his back. Lastly, the examiner opined that the Veteran’s lumbar spine disability does not impact his ability to work. The record also contains VA examinations from December 2010 and July 2015. The December 2010 VA examination similarly reported the Veteran’s forward flexion on initial range of motion was measured at 80 degrees out of 90 degrees. The Veteran reported problems with pain and stiffness upon transitioning from sitting to standing. The examiner also noted that the Veteran’s range of motion was not limited due to pain upon repeated use. The July 2015 VA examination reported that the Veteran’s forward flexion was normal at 90 degrees with no guarding or muscle spasms. The examiner further noted no signs or symptoms of radiculopathy nor ankylosis. IVDS was not indicated nor any other neurologic abnormalities related to the lumbar spine. Similarly, the examiner opined that the Veteran’s lumbar spine disability does not impact his ability to work. This examiner however, failed to specify whether the findings concerning range of motion were on either active or passive motion or in weight-bearing or non-weight bearing. See Correia v. McDonald, 28 Vet. App.158 (2016). The Board notes, neither the 2010 nor 2015 VA examinations provided a response regarding flare-ups of the Veteran’s lumbar spine disability as required, hence the Board remanded for the more recent VA examination conducted in February 2020. See Sharp v. Shulkin, 29 Vet. App.26 (2017). The record also contains private treatment records and examinations from physicians Dr. D.R, Dr. A.F. and Dr. J.A. for the Veteran’s lumbar spine disability. A March 2013 lumbar spine questionnaire provided by Dr. D.R. noted unfavorable ankylosis and range of motion at which the Veteran first experiences pain to be between 31 and 60 degrees. The examiner noted the Veteran had limitation of function, specifically lifting over 20 pounds and prolong sitting or standing. It was further noted that he should not sit or stand continuously and could only sit for 4 to 5 hours a day or stand or walk for 3 to 4 hours a day over the course. No bed rest for IVDS was noted however, Dr. D.R. diagnosed the Veteran with mild to moderate bilateral lower extremity radiculopathy. He also opined that the Veteran was capable of performing gainful employment with the use of medications. Dr. J.A. also completed a lumbar spine questionnaire in February 2015. He diagnosed the Veteran with chronic lumbar spine pain. It was noted the Veteran experienced pain upon range of motion beginning with 30 degrees of flexion. There were positive clinical findings for tenderness, muscle spasms and trigger points. Dr. J.A. indicated that the Veteran could sit, stand or walk for 2 to 3 hours in an average 78-hour workday, but it would be necessary or medically recommended for him to not sit continuously. There was no noted bed rest due to IVDS nor a diagnosis of radiculopathy. It was opined that the Veteran’s symptoms were severe enough to interfere with attention and concentration “periodically and frequently”. Chiropractic therapy notes from Dr. A.F. from September 2015 discuss the Veteran’s ongoing therapy treatments and reports by the Veteran that his lower back pain and stiffness were getting worse. However, after therapy sessions it was reported that the symptoms were getting better. In December 2015, therapy notes indicate some relief of symptoms due to therapy, but the back pain had returned. Dr. A.F. thus increased the frequency of the Veteran’s chiropractic therapy treatment. Dr. A.F. also completed a lumbar spine questionnaire in March 2017 in which he noted the diagnosis of ongoing chronic low back pain. No ankylosis, radiculopathy or IVDS were noted. There were positive findings of tenderness, muscle spasms and trigger points. The Veteran reported his primary symptoms were pain with activities during daily life with the pain located primarily in the low back area near the lumber spine. Functionally, Dr. A.F. opined that based on an 8 hour work day, the Veteran could sit or stand for an hour but would be necessary or medically recommended for him to not sit continuously without a break to get up and move around every 30 minutes to an hour. Ultimately, Dr. A.F. opined that the Veteran could maintain employment with his current lumbar spine disability. A March 2018 chiropractic note from Dr. A.F. noted continued complaints of low back pain. It also indicated range of motion upon flexion to be 65 degrees. Dr. A.F.’s plan of care included manipulative and manual therapies with exercise instruction twice a week for three weeks. In short, the evidence shows, the Veteran’s lumbar spine disability is manifested by low back pain with no flare ups and no ankylosis with forward flexion to, at worst, 65 degrees taking into consideration functional impairment during flare-ups and on repeated use due to pain. Thus, a rating greater than 10 percent is not warranted. The Board acknowledges the Veteran’s lay reports of symptoms and that there was an increase in pain and stiffness with prolonged standing and walking. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to less than 60 degrees but greater than 30 degrees; or muscle spasm or guarding with abnormal gait; or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. Indeed, the medical evidence of record indicates the Veteran’s range of motion of the lumbar spine to be no worse than 65 degrees of flexion, with indication during the most recent examination in February 2020 that the range of motion is 80 degrees. In fact, the examiner noted that repetitive motion would result in no change to the Veteran’s range of motion and there was no report of pain during testing. Furthermore, ankylosis of the spine has been recently confirmed by the examiner in February 2020 to not be present. The sole report of ankyloses by Dr. D.R. in March 2013 is, therefore, given little probative weight for the medical evidence of record both before and after this report notes the Veteran does not have ankylosis of the spine. Furthermore, there is no evidence that the Veteran’s gait is abnormal with no effects from muscle spasms nor guarding. There is no evidence of an abnormal spinal contour and the Veteran has denied experiencing flare-ups. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. The IVDS Rating Formula provides that a 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating requires that the disability be productive of incapacitating episodes having a total duration of at least four but less than six weeks per year. Finally, a maximum 60 percent rating is available when the condition is manifested by incapacitating episodes having a total duration of at least six weeks, during the past 12 months. However, even though the Veteran recently has been diagnosed IVDS, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Regarding neurological impairment, the lay and medical evidence of record is also against a finding that the Veteran has any other neurological abnormality associated with his spine disability. In particular, the December 2010, July 2015 and February 2020 VA examinations all found there had not been any record or need for bed rest due to IVDS. The private March 2017 lumbar spine questionnaire by Dr. A.F. further confirmed the absence of records or need for bed rest due to IVDS. Both the private and VA examinations of record also do not contain any notations of other neurologic abnormalities to include bowel or bladder problems. The Board notes, the Veteran was diagnosed by the February 2020 VA examiner with left lower extremity neuropathy. This condition was subsequently granted service connection with a disability rating of 20 percent in a rating decision dated in July 2020. The Veteran has since appealed that rating decision to the RO for higher level review. Thus, the Board does not have jurisdiction of this claim and cannot review the initial rating of the Veteran’s left lower extremity radiculopathy of the sciatic nerve. The medical evidence does not show any evidence of any other neurological abnormalities associated with the Veteran’s spine disability. Thus, there is no basis to award any further separate ratings. While the Veteran is competent to report symptomatology that he experiences, he has not shown that he has the medical experience or training to relate the symptoms of radiating pain to a specific diagnosis or relate it to his spine disability, which are medically complex determinations that cannot be based on lay observation alone. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Instead, such a determination must be made by a medical professional with appropriate expertise. Id. According to VA examinations and diagnostic tests, no neurological abnormalities were found associated with the Veteran’s spine disability other than those noted above. Based on the foregoing, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for degenerative arthritis of the lumbar spine. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.