Citation Nr: 21062342 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 15-20 649 DATE: October 7, 2021 ORDER An initial 40 percent rating, but no higher, for lumbar spondylosis with degenerative disc disease is granted. FINDING OF FACT The Veteran's lumbar spondylosis with degenerative disc disease has been manifested by forward flexion of the thoracolumbar spine of 30 degrees or less. CONCLUSION OF LAW The criteria for an initial 40 percent rating, but no higher, for lumbar spondylosis with degenerative disc disease have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2008 to May 2013. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A Board hearing was held before the undersigned in January 2019. A transcript of the hearing is of record. This matter was previously before the Board in February 2019 and March 2021 when it was remanded for further development. Lastly, Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), provides that entitlement to TDIU, when reasonably raised by the record, is part of any claim for an increased rating. The records here reflect that the Veteran is currently employed and has been throughout the pendency of the appeal. Absent evidence of unemployment, the Board finds that the issue of entitlement to a TDIU has not been raised by the record. Increased Rating An initial 40 percent rating, but no higher, for lumbar spondylosis with degenerative disc disease is granted. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board acknowledges that with respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Degenerative and/or traumatic arthritis as shown by X-ray studies are rated based on limitation of motion of the affected joint. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. When, however, the limitation of motion is noncompensable under the appropriate diagnostic code, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In Petitti v. McDonald, 27 Vet. App. 415 (2015), the United States Court of Appeals for Veterans Claims (Court) rejected VA's argument that § 4.59 requires painful motion, such that the mere presence of joint pain is not sufficient. Id. at 428-29. The Court held that under § 4.59, "the trigger for a minimum disability rating is an actually painful, unstable, or malaligned joint," explaining that § 4.59 speaks to both painful motion of joints and actually painful joints. Id. at 425. Moreover, the Court held that § 4.59 does not require "objective" evidence but can be satisfied with lay and other non-medical evidence. Id. at 429. Here, the Veteran's service-connected lumbar spondylosis with degenerative disc disease has been assigned a 10 percent rating for the period prior to March 1, 2019; a 20 percent rating for the period from March 1, 2019 to May 21, 2021; and a 40 percent rating for the period from May 21, 2021 under Diagnostic Code 5242. 38 C.F.R. § 4.71a. The Veteran's lumbar spine disability can be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. The General Rating Formula for Diseases and Injuries of the Spine provides that with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine is 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 when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasm or guarding is 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 when forward flexion of the thoracolumbar spine is 30 degrees or less; or, when there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a. Unfavorable ankylosis is defined as "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." Id., Note (5). Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. Under the Formula for Rating IVDS, a 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 months. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. Note (1) provides that for purposes of evaluating under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. Turning to the evidence in this case, the record reflects that the Veteran underwent a VA examination in September 2013. During the examination, the Veteran reported experiencing flare ups, noting that the pain during flare ups can cause him to drop to his knees and feels as if is back is giving out. The examiner noted that physical examination of the Veteran revealed forward flexion to 90 degrees or greater, without any objective evidence of painful motion; extension to 30 degrees or greater, without any objective evidence of painful motion; and right and left lateral flexion and lateral rotation to 30 degrees or greater, without any evidence of painful motion. The examiner also indicated that the Veteran was able to perform repetitive-use testing with three repetitions without any additional loss of motion. The examiner noted that the Veteran did not have any functional impairment of the thoracolumbar spine, localized tenderness or pain to palpation, guarding, or spasm. Strength testing was normal and there was no evidence of muscle atrophy. The Veteran's deep tendon reflexes and sensory examination were normal, straight leg raising tests were negative, and there was no evidence of radiculopathy or other neurologic abnormalities, such as bowel or bladder impairment. The examiner noted that the Veteran did not have IVDS and did not use any assistive devices. Lastly, the examiner noted that the Veteran's lumbar spondylosis with degenerative disc disease impacted his ability to work, that his posture and gait were within normal limits, and that there were no contributing factors of weakness, fatigability, incoordination, or pain during flare ups or with repeated use over time that could additionally limit functional ability of the thoracolumbar spine. However, in a February 2019 Board decision, the Board remanded the claim for a new VA examination after finding this examination did not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Therefore, the examination is inadequate for rating purposes. The Veteran's VA treatment records also provide information regarding his symptoms. Specifically, a June 2015 note reflects that the Veteran has muscle spasms but no tenderness. In July 2015, it was noted that he had a steady gait but walked bent over 45 degrees at the waist. Additionally, he denied bowel or bladder dysfunction, weakness, and numbness. He did report worsened pain with movement and walking. In a July 2018 record, it was noted that the Veteran had reduced lumbar lordosis and that his posture was slightly kyphotic. It was also noted that the Veteran demonstrated poor motor control with movements using the lower segment of his lumbar spine and that he had hip tightness that could have also been contributing to a reduction of lumbar lordosis. A March 2019 record reflects that the Veteran had flattened lumbar lordosis, ambulated on level surfaces without a gait device, and had no deviation or reduced pace. Private treatment records also provide information regarding the Veteran's symptoms. For example, in August 2015, the Veteran reported back pain. He indicated that the pain was moderate to severe, sharp, dull, and radiated to his buttocks. It was noted that there was no weakness, numbness, gait disturbance, or loss of bowel and bladder control. Physical examination revealed muscle spasm but no deformity or spinal tenderness. It was noted that the Veteran had full range of motion and normal gait. In September 2015, the Veteran reported dull pain, stiffness, and soreness and indicated that the pain was precipitated by overuse, walking, and sitting. Physical examination revealed decreased motion in all ranges of motion and pain with movement on flexion, extension, left and right rotation, left and right bending, and standing from a seated position. Tenderness on palpation was also noted. A May 2016 record reflects that the Veteran had decreased lumbar extension with pain and pain on flexion. In January 2019, the Veteran's wife provided a statement in which she reported witnessing the Veteran experience back and leg pain for years, noting that there were moments when the pain was completely debilitating. She reported that the Veteran would complain of shooting pain down his legs, numbness, and tingling when his back went out. She also indicated that there were days the Veteran had trouble walking upright, that he is unable to pick up their children, and that he sometimes must call-in sick to work because of his back pain. In January 2019, the Veteran testified at a Board hearing and reported throwing his back out a few times per year and difficulty walking. He also reported that exercising exacerbates his condition and indicated that he sometimes must call-in sick to work because of his back condition. In March 2019, the Veteran underwent an additional VA examination. During the examination, the Veteran reported experiencing flare ups and explained that the flare ups can be described as shooting and jarring pain in his lower back which cause him to stoop over and move slowly and prevents him from being able to find comfort sitting, standing, or lying down. The Veteran also reported functional loss, noting that he cannot stand straight; has difficulty walking, getting off the floor without his wife's assistance, completing work assignments, and putting on shoes; and becomes depressed as a result of his symptoms. Initial range of motion testing revealed forward flexion to 75 degrees, extension to 25 degrees, right and left lateral flexion to 30 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 25 degrees. The examiner noted that the Veteran's initial range of motion test results were abnormal but did not in itself contribute to functional loss. The examiner also noted that pain was noted on examination with forward flexion, extension, right lateral flexion, and right lateral rotation but did not cause functional loss. There was no evidence of pain with weight-bearing, localized tenderness, or pain on palpation. The examination report reflects that the Veteran was able to complete repetitive-use testing with at least three repetitions and that there was no additional loss of function or range of motion after three repetitions. Regarding repeated use over time and flare ups, the examiner indicated that he could not provide an opinion as to whether pain, weakness, fatigability, or incoordination limited functional ability with repeated use over time or during flare ups without resorting to speculation because it would depend on the type of activity performed and the severity of pain experienced by the Veteran. The examiner noted that there was no evidence of guarding or muscle spasm. The Veteran's strength was normal and there was no evidence of muscle atrophy. Reflex examination was normal, straight leg raising testing was negative, and there was no evidence of radiculopathy. There also was no evidence of ankylosis, bowel or bladder impairment, IVDS, or use of assistive devices. The examiner indicated that the Veteran's condition impacted his ability to work as a nurse, noting that he is limited in lifting patients. Lastly, the examiner reported that there was objective evidence of pain on passive motion and no evidence of pain on nonweight-bearing testing of the back. In May 2019, a VA examiner provided a supplement to the March 2019 examination report in which he estimated the Veteran's range of motion during repetitive use and flare ups. He estimated forward flexion to 55 degrees; extension to 20 degrees; right lateral flexion to 0 degrees; left lateral flexion to 30 degrees; right lateral rotation to 20 degrees; and left lateral rotation to 25 degrees. He noted that there was no loss in range of motion for left lateral flexion and rotation in comparison to the initial range of motion testing and noted that there was no pain on those movements. However, in a March 2021 decision, the Board remanded the claim again for a new VA examination after finding the examiner failed to provide passive range of motion measurements and also failed to indicate at which point pain began during range of motion testing, noting that the inadequacies of the March 2019 VA examination were not clarified by the May 2019 estimates concerning range of motion during repetitive use and flare ups. Thus, the March 2019 VA examination and May 2019 supplement are inadequate for rating purposes. In May 2021, the Veteran underwent an additional VA examination. During the examination, the Veteran reported an inability to exercise due to his low back pain. He indicated that surgery had been discussed as a treatment option. He reported constant pain (rated at four out of ten) with intermittent sharp pain (rated at six out of ten); and increased pain with prolonged sitting, standing, walking, heavy lifting, and twisting. The Veteran reported experiencing flare ups characterized by sharp and intense pain (rated at ten out of ten) and muscle spasm. He indicated that his flare ups are severe, occur every three to four months, last about one-to-one- half weeks, and result in a complete loss of motion. He also reported functional impairment as he indicated that prolonged sitting, standing, walking, heavy lifting, and twisting cause increased pain. Initial range of motion testing was abnormal, as the Veteran's forward flexion was to 50 degrees, extension was to 10 degrees; and right and left lateral flexion and rotation were all to 20 degrees. The examiner indicated that the abnormal range of motion in itself contributed to functional loss and noted that pain was present on all ranges of motion but did not result in any additional loss of motion. The examiner indicated that passive range of motion testing was not performed due to a risk of further injury. The examiner noted that there was pain with weight-bearing and active motion that did not result in functional loss. There was no evidence of crepitus but there was mild tenderness on palpation. The Veteran was able to perform repetitive use testing with at least three repetitions without any additional loss of function or motion. The examiner indicated that pain and lack of endurance cause functional loss following repeated use over time and indicated that, in terms of range of motion, forward flexion would be limited to 40 degrees, extension limited to 5 degrees, and right and left lateral flexion and rotation would all be limited to 15 degrees based on the Veteran's reports regarding increased pain with prolonged sitting, standing, heavy lifting, and twisting. The examiner also noted that there was pain and lack of endurance during flare ups which resulted in additional loss of motion. Specifically, based on the Veteran's description of his flare ups, the examiner estimated that the Veteran's forward flexion is limited to 10 degrees, extension is limited to 5 degrees, and right and left lateral flexion and rotation would all be limited to 5 degrees. The examiner also indicated that there was mild tenderness on palpation to the Veteran's low back and muscle spasm, but no resulting abnormal gait or abnormal spinal contour. Additional factors contributing to the Veteran's disability include interference with sitting and standing and disturbance of locomotion. Muscle strength testing was normal and there was no evidence of muscle atrophy. Deep tendon reflexes on the right and left knees were hypoactive and deep tendon reflexes of the right and left ankles were normal. Sensory examination was normal and straight leg raise testing was negative; however, the examiner noted radiculopathy of the bilateral lower extremities. There was no evidence of ankylosis, bowel or bladder impairment, or IVDS and the Veteran did not report use of any assistive devices. Lastly, the examiner indicated that the Veteran's back condition interfered with his ability to work, noting that the Veteran reported changing work positions due to his low back pain. After review of the evidence of record, the Board finds that an initial 40 percent rating, but no higher, under Diagnostic Code 5242 is warranted for the entire period on appeal. As indicated above, a 40 percent rating requires evidence indicating forward flexion of the thoracolumbar spine is limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. While the record does not reflect that the Veteran has favorable ankylosis of the entire thoracolumbar spine, the May 2021 VA examination report does indicate that the Veteran's forward flexion is limited to 10 degrees during flare ups. In light of this, and resolving all reasonable doubt in the Veteran's favor, the Board finds an initial 40 percent rating, but no higher, is warranted for the entire period on appeal. However, the Board finds a rating in excess of 40 percent is not warranted as a preponderance of the evidence is against finding that the Veteran has had unfavorable ankylosis of the spine at any point during the appeal period. In this regard, the Board notes that the Veteran's VA treatment records and private treatment records are silent for ankylosis. Additionally, the May 2021 VA examination report expressly indicates that the Veteran does not have ankylosis. The Board recognizes the Veteran's complaints of pain, loss of motion, and functional loss as a result of his back disability, notably his increased pain with prolonged sitting, standing, walking, heavy lifting, and twisting and his severe pain and loss of motion during flare ups. However, even considering the Veteran's lay reports of symptoms and noted functional loss caused by his back disability, there's no evidence his symptoms result in or more nearly approximate the spine being fixed in flexion or extension and one of the additional symptoms set forth in Note (5). The Board has considered whether the Veteran is entitled to a higher rating under the rating criteria for IVDS. However, the record reflects that the Veteran does not have IVDS, as noted on the May 2021 VA examination report. Therefore, a rating in excess of 40 percent for lumbar spondylosis with degenerative disc disease is not warranted under the rating criteria for IVDS. Note (1) to the General Rating Formula for Diseases and Injuries of the Spine provides for separate rating(s) for associated neurologic impairment, including bowel or bladder impairment. The record does not reflect that the Veteran has had any bowel or bladder impairment; therefore, there is no basis for a separate award for neurological impairment on that basis. Furthermore, the Veteran has already been granted service connection for bilateral lower extremity radiculopathy. The record does not reflect any other neurological impairment associated with the lumbar spondylosis with degenerative disc disease. In sum, the Board finds the criteria for an initial 40 percent rating, but no higher, for lumbar spondylosis with degenerative disc disease is warranted for the entire period on appeal. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Jiggetts 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.