Citation Nr: 21062389
Decision Date: 10/07/21	Archive Date: 10/07/21

DOCKET NO. 14-07 014
DATE: October 7, 2021

ORDER

Entitlement to an initial rating of 40 percent for degenerative disc disease of the thoracolumbar spine is granted.

Entitlement to a rating in excess of 40 percent for degenerative disc disease of the thoracolumbar spine, is denied.

FINDINGS OF FACT

1. Prior to April 9, 2018, degenerative disc disease of the thoracolumbar spine status post disc replacement L4-L5 with facet syndrome has manifested in forward flexion of the thoracolumbar spine 30 degrees or less. 

2. There is no evidence that the degenerative disc disease of the thoracolumbar spine status post disc replacement L4-L5 with facet syndrome has manifested in ankylosis or incapacitating episodes of a total duration of at least 6 weeks.

CONCLUSIONS OF LAW

1. The criteria for an initial evaluation of 40 percent for degenerative disc disease of the thoracolumbar spine status post disc replacement L4-L5 with Facet Syndrome have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5237.

2. The criteria for an evaluation in excess of 40 percent for degenerative disc disease of the thoracolumbar spine status post disc replacement L4-L5 with facet syndrome are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5237.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 2006 to December 2009.

This matter comes before the Board of Veterans' Appeals (Board) originally on appeal from a July 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).  It was previously before the Board in March 2018, April 2020 and June 2021.

Increased Rating

1. Entitlement to an initial rating of 40 percent for thoracolumbar disc disease

2. Entitlement to a rating in excess of 40 percent for thoracolumbar disc disease

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of a veteran. 38 C.F.R. § 4.3.

When assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Pain, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, [or] endurance." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011).

The Veteran's service-connected degenerative disc disease of the thoracolumbar spine status post disc replacement L4-L5 with facet syndrome, is evaluated under Diagnostic Code 5237. It has an initial evaluation of 20 percent, effective December 29, 2009, and a 40 percent evaluation, effective April 09, 2018. In essence, the AOJ assigned a staged rating.

Disabilities of the spine are rated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating.

Under the General Rating Formula, a 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or 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 evaluation is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.

A 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine.

A 100 percent evaluation is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a.

The rating criteria further explain under Note (1), that any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. The Veteran has separate evaluations for his associated neurological disabilities of the lower extremities, which will be addressed separately.

Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (in pertinent part), a 20 percent evaluation is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation 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 evaluation is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.

Note (1) for purposes of evaluations under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, defines an incapacitating episode as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.

At a June 2010 VA examination, measurements showed forward flexion to 45 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 17 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 25 degrees, with pain on motion, tenderness to palpation, and guarding. 

At a September 2015 VA examination, measurements showed forward flexion to 90 degrees, extension to 25, right and left lateral flexion to 30, and right and left lateral rotation to 30.  Pain was noted, particularly on forward flexion and extension. The examiner did note that "there were no objective signs of pain, fatigue, weakness, incoordination or further decreases in range of motion demonstrated with the DeLuca measurement. Therefore, it would require mere speculation to attempt to quantify any additional limitation that may or may not occur with repetitive motion or a flare."

At a July 2017 VA examination, measurements showed forward flexion to 70 degrees, extension to 30, right and left lateral flexion to 30 and right and left lateral rotation to 30. There was no loss of range of motion after three repetitions of testing. Pain was noted on examination, but the examiner indicated it did not rise to such a level as to cause functional loss.  There was no tenderness to palpation, no guarding and no spasms.  The examiner concluded that based on testing, pain, weakness, fatigability or incoordination would not be expected to limit functional ability with repeated use over time or during flare-ups. However, the examiner stated that "The examination is neither medically consistent or inconsistent with the Veteran's statements describing functional loss during flare ups." Ankylosis and IVDS were not identified.

At a May 2018 VA examination, measurements showed forward flexion to 30 degrees, extension to 5 degrees, right lateral flexion to 5 degrees, left lateral flexion to 5 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 15 degrees, with pain on motion, guarding, with no ankylosis of the spine or IVDS reported. Functional loss was noted upon repetition, with forward flexion lowering to 20 degrees. Functional loss was attributed to pain and lack of endurance.

At a March 2021 VA examination, measurements showed forward flexion to 45 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees, with pain on motion and no ankylosis of the spine or IVDS reported. Functional loss was noted upon repetition, with forward flexion to 40 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 15 degrees. Functional loss was attributed to pain and lack of endurance. Repeated use over time was estimated to have forward flexion to 35 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 10 degrees.

This claim was remanded in June 2021, where an addendum medical opinion was obtained. A VA examiner was asked to provide a retrospective opinion regarding whether there was loss of range of motion of the Veteran's lumbar spine on repetitive use over time or during flare-ups that could be considered functional loss. Specifically, the examiner was requested to review prior VA examinations and outpatient treatment records and to "opine on the severity, frequency, and duration of any flare-ups and the degree of functional loss during those flare-ups."

In response, the VA examiner wrote in July 2021 that "Based on a review of the medical information provided it is my medical opinion that it is at least as likely as not (>50% probability) that the Veteran has weekly flare ups, moderate to severe in severity. Based on reviewing the information in the 4512 pages of the efile these flare ups seem to a last a day or so and she has a significant functional loss during these flares. These are reasonable based on her underlying pathology that was treated with surgery. It is totally within clinical expectations that she would have pain that would flare up and when it flares she would be worse off."

Upon careful review of the evidence of record, the Board has determined that an initial evaluation of 40 percent is warranted. Of particular note, the Board has considered DeLuca with reference to the VA examiner's July 2021 addendum opinion. The Board finds that, based on the opinion, throughout the initial and current period, the Veteran experiences weekly flare ups, moderate to severe in severity, which would lead to significant functional loss. In order to warrant a higher evaluation, there must be the functional equivalent of limitation of flexion to 30 degrees or less. 38 C.F.R. §§ 4.40, 4.45. With consideration of the flare ups the Veteran was experiencing, as well as estimations that flare ups could cause forward flexion to be less than 30 degrees, the Board finds that the Veteran rating more closely approximated the 40 percent rating. Therefore, the Veteran's initial evaluation is increased to 40 percent.

The Board finds that at no point during the pendency of the appeal is an evaluation of 50 percent warranted. A review of the medical evidence of record, to include treatment records, does not reveal ankylosis of the thoracolumbar spine or incapacitating episodes of a duration of at least 6 weeks over a 12-month period. The fact that she retains motion clearly establishes that she does not have the functional equivalent of ankylosis.  As a result, an evaluation in excess of the current 40 percent evaluation is not warranted. The Veteran is in receipt of the maximum schedular evaluation as warranted for limited range of motion as well as consideration of DeLuca. As a result, a new examination to address the provisions of 38 C.F.R. § 4.59 and the holding of Correia v. McDonald, 28 Vet. App. 158 (2016) would not benefit the Veteran. 

To the extent that the Veteran experienced pain during range of motion testing or was limited by pain, the Board has considered DeLuca. The Board acknowledges the Veteran's complaints of pain and painful motion.

The Board has not overlooked the statements by the Veteran and her representative with regard to the severity of her disability during this period. The Veteran is competent to report on factual matters of which she had firsthand knowledge, e.g., experiencing pain. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Here, the Board finds the medical evidence to be of greater probative value.

As stated previously, a review of the medical evidence of record, to include treatment records, does not reveal ankylosis of the thoracolumbar spine or incapacitating episodes of a duration of at least 6 weeks over a 12-month period. As a result, an evaluation in excess of 40 percent is not warranted. The Veteran is in receipt of the maximum schedular evaluation for the entire time period as warranted for limited range of motion. 

 

 

H. N. SCHWARTZ

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Jonah Nelson, 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.