Citation Nr: 21005228 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 16-17 967 DATE: January 29, 2021 ORDER A rating in excess of 10 percent disabling for lumbosacral spine degenerative joint disease prior to June 13, 2016 is denied. A rating in excess of 40 percent for lumbosacral spine degenerative joint disease with arthritis from June 13, 2016 to October 15, 2020 is denied. A rating in excess of 20 percent for lumbosacral spine degenerative joint disease with arthritis from October 16, 2020 is denied. FINDINGS OF FACT 1. The Veteran’s lumbosacral spine degenerative joint disease manifested with muscle spasm that did not cause abnormal gait nor posture prior to June 13, 2016. 2. The evidence is in equipoise that the Veteran’s lumbosacral spine degenerative joint disease manifested with favorable ankylosis of the entire thoracolumbar spine from June 13, 2016 to October 15, 2020. 3. The preponderance of the evidence supports a finding that the Veteran’s lumbosacral spine degenerative joint disease manifested with forward flexion of greater than 30 degrees from October 16, 2020 onward. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for lumbosacral spine degenerative joint disease from May 3, 2013 to June 12, 2016 is not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 2. The criteria for a rating in excess of 40 percent for lumbosacral spine degenerative joint disease with arthritis from June 13, 2016 to October 15, 2020 is not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237-5242. 3. The criteria for a rating in excess of 20 percent for lumbosacral spine degenerative joint disease with arthritis from October 16, 2020 is not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237-5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1992 to April 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In a September 2020 decision, the Board remanded this matter for an examination. In October 2020, the Veteran was provided with an adequate VA examination. As such, this matter is ready for adjudication. In a June 2012 rating decision, the Veteran was service connected for lumbosacral spine degenerative joint disease (lumbar disability) with a noncompensable rating effective May 2011. The Veteran did not appeal that decision nor did she submit new and material evidence within a year.   The Board finds that the medical records submitted within a year of the decision were service records that supported the Veteran’s other pending claims. Further, the additional VA treatment records associated with the file were not material to a claim for an increased rating for lumbar disability because her single treatment for chronic back pain described no functional loss or limitation. See Capri received 3/23/2013 at page 2. Therefore, the June 2012 rating decision is final. In November 2013, the Veteran filed an informal claim for an increased rating of her lumbar disability. See VA 21-4138 Statement in Support of Claim received 11/15/2013. A June 2014 rating decision denied a compensable rating. In September 2014, the Veteran filed a Notice of Disagreement wherein she disagreed with the evaluation of the disability. See NOD received 9/15/2014. After the September 2020 Board remand, the Agency of Original Jurisdiction (AOJ) granted a 40 percent rating from June 13, 2016 to October 15, 2020, and a 20 percent rating after October 16, 2020. See Rating Decision-Codesheet received 11/19/2020. However, the period on appeal includes the date of filing or November 2013. *** Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of the disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In determining the propriety of an initial disability rating, the evidence since the effective date of the grant of service connection must be evaluated. Fenderson v. Brown, 12 Vet. App. 119, 126-27 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board must also consider staged ratings, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran's lumbar disability is rated based on the General Rating Formula for the Spine under Diagnostic Code 5242. 38 C.F.R. § 4.71a. Under the General Rating Formula for 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, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 evaluation is warranted where the evidence shows 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 30 percent rating is warranted for forward flexion of the cervical spine limited to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The criteria for a 50 percent rating are unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Associated objective neurological abnormalities are rated separately under the appropriate diagnostic code. Id. Note (1). Alternatively, a back disorder can be rated as Intervertebral Disc Syndrome (IVDS) based on incapacitating episodes. Under those criteria, found at Diagnostic Code 5243, a ten percent evaluation requires incapacitating episodes having a total duration of at least one week, but less than 2 weeks during the past 12 months, and 20 percent evaluating requires incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks during the past 12 months. Id. DC 5243. A 40 percent rating is warranted for incapacitating episodes having a total duration of less than six weeks, but more than four weeks and a 60 percent rating is warranted if incapacitating episodes have a total duration of at least six weeks during the past 12 months. There is no corresponding note allowing for the separate evaluation of any associated neurologic abnormalities. 38 C.F.R. § 4.71a. Degenerative arthritis is rated based on limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. Where there is noncompensable limitation of motion, a 10 percent evaluation is assigned for each major joint or group of minor joints, where the limitation is objectively confirmed by swelling, muscle spasm, or satisfactory evidence of painful motion. Where there is no limitation of motion, a 10 percent evaluation is assigned for x-ray evidence of involvement of two or more major joints or minor joint groups, and a 20 percent evaluation is assigned for x-ray evidence of involvement of two or more major joints or minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003, Note (1).   1. A rating in excess of 10 percent disabling for lumbosacral spine degenerative joint disease from May 3, 2013 to June 12, 2016 is denied. In May 2014 the Veteran was provided an examination for her lumbosacral disability. At the time of the examination, there were no additional diagnoses. The May 2014 VA examiner described the Veteran’s condition as quiescent. See C&P Exam received 5/09/2014 at page 21. The Veteran reported no muscle weakness, no loss of motion, and that she was not actively managed for her lumbosacral disability. Id. at page 14. The Veteran did report tightness in her back on most days, and stated that she only took over-the-counter pain medication when necessary. The examiner found no objective painful motion nor limitation of ROM upon examination; her overall ROM was 240 degrees, with forward flexion to 90 degrees or greater. Id. at pages 15-16. In the remarks, the examiner stated that the Veteran’s posture and gait were within normal limits. The examiner found no additional limitation of functional ability nor incoordination during flare ups or with repeated use over time. Id. at page 21. Since there is evidence of muscle spasm, the Veteran is entitled to a 10 percent rating under Diagnostic Code 5242. A review of the Veterans medical record show treatments for chronic back pain and that she wore a back brace. See Capri received 4/23/2014 at pages 7, 46, 113. That said, since the Veteran’s lumbosacral disability showed no functional loss, her ROM was normal, and her muscle spasm did not result in an abnormal gait or spinal contour; the preponderance of the evidence weighs against a rating in excess of 10 percent disabling. Accordingly, a rating in excess of 10 percent for lumbosacral disability from May 3, 2013 to June 12, 2016 is denied. 2. A rating in excess of 40 percent from June 13, 2016 to October 15, 2020 is denied. In June 2016, the Veteran provided a private disability benefits questionnaire from her provider. The physician, Dr. K.S., diagnosed the Veteran with mechanical back pain, lumbosacral sprain/strain, degenerative disc disease, and degenerative spondylosis. See Disability Benefits Questionnaire (DBQ) received 6/15/2016 at page 1. Dr. K.S. found the Veteran’s condition led to functional loss in ROM. Overall ROM was found to be 100 degrees, to include forward flexion to 20 degrees. Id. at pages 2-3. Dr. K.S. endorsed guarding and muscle spasm and found the Veteran’s gait and spinal contour were abnormal. Dr. K.S. found favorable ankylosis of the entire thoracolumbar spine. Id. at page 6. A review of the Veteran’s medical record does not show unfavorable ankylosis of the thoracolumbar spine or of the entire spine. The findings are indicative of a 40 percent rating since favorable ankylosis of the entire thoracolumbar spine was found. Diagnostic Code 5242. Since unfavorable ankylosis of the entire thoracolumbar spine was not found, the preponderance of the evidence weighs against a rating in excess of 40 percent disabling. See Disability Benefits Questionnaire (DBQ) received 6/15/2016 at page 6. Therefore, an increased rating in excess of 40 percent disabling from June 13, 2016 to October 15, 2020 is denied. 3. A rating in excess of 20 percent from October 16, 2020 is denied. Since the Veteran indicated that her disability had increased in severity, the Board remanded this claim for a new VA examination in September 2020. See Remand BVA received 9/16/2020. The October 2020 examiner found an improvement in the Veteran’s condition when compared to the June 2016 private examination. Of note, however, is that the October 2020 examiner found that the Veteran’s lumbosacral spine degenerative joint disease changed and was a progression of the prior diagnosis and diagnosed bilateral lumbar lower extremity radiculopathy. Overall ROM measurements were abnormal, measuring 180 degrees, on repetitive testing the Veteran’s overall measurements were 160 degrees, and with flare up the examiner found ROM totaled 140 degrees. See C&P Exam received 11/05/2020 at pages 5-6. Forward flexion was to 60 degrees. Id. at page 5. Favorable ankylosis of the entire thoracolumbar spine was not found on this examination, which was negative for ankylosis of the spine. Id. at page 9. The Veteran regularly used a cane and brace. The Board gives the November 2020 examination considerable weight since the examiner reviewed the Veteran’s records, conducted an in-person examination, noted the Veteran’s lay reports of functional loss and pain and stated that the examination results were consistent with the Veteran’s statements of functional loss. The Board finds that given the Veteran’s ROM measurement of forward flexion at 60 degrees and no finding of favorable ankylosis of the entire thoracolumbar spine, the preponderance of the evidence is against a finding of a rating in excess of 20 percent disabling. Although, the Board acknowledges that the findings of the November 2020 examination resulted in a reduction of the Veteran’s rating from the prior period, the Board finds that since the November 2020 examination was adequate; stage ratings are appropriate. Staged ratings are appropriate where, like in this case, the evidence shows distinct time periods wherein the Veteran’s lumbar disability manifests with differing symptomology. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Accordingly, a rating in excess of 20 percent disabling from October 16, 2020 is denied. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Dixon, 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.