Citation Nr: 21004688 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 16-56 588 DATE: January 27, 2021 ORDER Entitlement to a rating in excess of 40 percent rating for multilevel degenerative disc disease is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s lumbar spine disability is manifested by unfavorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes that required bed rest prescribed by a physician and treatment by a physician having a total duration of at least six weeks during the past twelve months. CONCLUSION OF LAW The scheduler rating criteria for a rating in excess of 40 percent for multilevel degenerative disc disease have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.7, 4.71a, 4.123, 4.124, 4.124a, Diagnostic Codes 5235 to 5243 and 8520 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1983 to August 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) regional office (RO) in Newnan, Georgia. The Veteran later testified at a Board videoconference hearing before the undersigned Veterans Law Judge in September 2019. A transcript of that hearing has been associated with the claims file. This claim was previously before the Board in November 2019, at which time it was remanded for further development. Increased Ratings The Veteran contends that his multilevel degenerative disc disease is worse than rated and warrants an increased rating. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA’s Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. See 38 C.F.R. § 4.1. 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 DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that 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. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, in Mitchell, the Court 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, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (with swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. 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, VA must determine the overall functional impairment due to these factors. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, “staged” ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board observes that the words “slight,” “moderate,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6 (2016). It should also be noted that use of descriptive terminology such as “mild” by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C. § 7104 (a); 38 C.F.R. §§ 4.2, 4.6. Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104 (a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a rating in excess of 40 percent rating for multilevel degenerative disc disease The Veteran’s lumbar spine disability is currently rated as 40 percent disabling under 38 C.F.R. § 4.71a, DC 5242. Disabilities that fall under DC 5242 require application of a General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitation Episodes, as follows: 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; Forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, warrants a 40 percent rating. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Unfavorable ankylosis of the entire spine warrants a 100 percent rating. 38 C.F.R. § 4.71. There are several notes set out after the applicable diagnostic criteria. First, associated objective neurologic abnormalities are to be rated separately under an appropriate Diagnostic Code. Second, for purposes of VA compensation, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 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 combined range of motion of the cervical spine is 340 degrees. Third, in exceptional cases, an examiner may state that, because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that particular individual, even though it does not conform to the normal range of motion stated in the regulation. Fourth, each range of motion should be rounded to the nearest 5 degrees. Finally, for VA purposes, unfavorable ankylosis is a condition in which the entire cervical spine, entire thoracolumbar spine, or entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficult walking because of a limited line of vision, restricted opening of the veteran’s mouth and chewing, breathing limited to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen, dyspnea or the existence of dysphagia, atlantoaxial or cervical subluxation or dislocation, or neurologic symptoms due to nerve root stretching. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. The Veteran has consistently reported significant pain and functional loss with respect to his back. See Veteran’s post-service treatment records and September 2019 Board hearing. The Board notes that the Veteran is competent to speak to certain symptoms of his disability, such as pain. However, the Veteran is not considered competent to speak to the severity of his lumbar spine disability, as that requires medical knowledge and expertise that the veteran has not been shown to possess. Jandreau v. Nicholson, 492. F.3d 1372 (Fed. Cir. 2007). The clinical records do not show evidence of spinal ankylosis. See September 2016 VA examination, October 2020 VA examination, and post-service and private treatment records. The September 2016 and October 2019 VA examiners specifically opined that there was no ankylosis of the spine and these opinions are not contradicted by another medical opinion of record. Colvin v. Derwinski, 1 Vet. App. 171 (1991). Therefore, the Board finds that a rating in excess of 40 percent is not warranted for the Veteran’s multilevel degenerative disc disease due to ankylosis. 38 C.F.R. § 4.71a. The Board also notes that the Veteran has been diagnosed with intervertebral disc syndrome (IVDS). See, September 2016 VA examination. However, the February 2017 private examiner opined that the Veteran’s incapacitating episodes had a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Therefore, a higher rating for IVDS is not warranted. The Board further notes that the Veteran is currently service connected for bilateral lower extremity radiculopathy and he has not expressed disagreement with the currently assigned rating. Furthermore, the provisions of 38 C.F.R. §§ 4.40, 4.45 are not for consideration where the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis, as is the scenario in the present case. Johnston v. Brown, 10 Vet. App. 80 (1997). Therefore, a higher rating based on functional impairment is not warranted. Accordingly, the Board finds that a rating in excess of 40 percent for the Veteran’s lumbar spine disability is not warranted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Daniels, 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.