Citation Nr: 21063835 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-40 384 DATE: October 18, 2021 ORDER Entitlement to a rating in excess of 20 percent for degenerative disc and joint disease of the lumbar spine is denied. FINDING OF FACT Throughout the period on appeal, the Veteran's lumbar spine disability has been limited to no less than 50 degrees of forward flexion; he does not have ankylosis or functional fixation of the spine; he does not have IVDS; he does not have any associated neurological abnormalities. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for degenerative disc and 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 5242, 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1986 to September 1994; from February 2003 to June 2003; from July 2006 to August 2006; from July 2008 to October 2008; From September 2009 to July 2010; and from January 2013 to April 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) As a matter of procedural background, this appeal previously came before the Board in January 2021, at which time it remanded this issue for further development. Also remanded at that time was the issue of entitlement to service connection of a right shoulder disability. In May 2021, the RO issued a new rating decision granting that claim, and it is no longer before the Board as part of this appeal. Also granted in the May 2021 rating decision was an increased disability rating of 20 percent for the Veteran's lumbar spine disability from the date of the claim for an increase. The Board has updated the issue on appeal to reflect the current rating for that disability. As the May 2021 increased rating grant did not grant the maximum schedular rating available for the Veteran's lumbar spine disability, the issue remains in appellate status. In September 2020, the Veteran testified before the undersigned Veterans Law Judge at a hearing held via videoconference. A transcript of that hearing is of record. Increased Ratings Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as in the case of the issue on appeal in this matter, entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consideration of the medical evidence since the date of the claim for increase and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119 (1999). "Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned." 38 C.F.R. § 4.7. 1. Entitlement to a rating in excess of 20 percent for degenerative disc and joint disease of the lumbar spine The Veteran's lumbar spine disability is presently rated as 20 percent disabling for the entire appeal period. He seeks a higher rating. The Board finds that the claim should be denied. The Veteran's lumbar spine disability is rated under Diagnostic Code (DC) 5242, which rates for degenerative arthritis of the spine, and degenerative disc disease other than intervertebral disc syndrome (IVDS), and applies the General Rating Formula for Diseases and Injuries of the Spine. Under the applicable rating criteria, a 20 percent rating is assigned 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. 38 C.F.R. § 4.71a, DC 5242. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Finally, a 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Id. An alternative method for rating diseases of the spine involves rating based on the presence of IVDS with incapacitating episodes under DC 5243. Under that rating criteria, a 20 percent rating is assigned for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. For a rating in excess of 20 percent, IVDS must result in incapacitating episodes having a total duration of at least 4 weeks or more during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. It should be noted that, during the course of this appeal, the schedular criteria for evaluating the back have been amended. Specifically, DCs 5242 and 5243 were amended to clarify when each diagnostic code should be assigned, effective February 7, 2021. See 85 Fed. Reg. 76,453 (November 30, 2020). Where a law or regulation changes during the pendency of a claim for increased rating, the Board should first determine whether application of the revised version would produce retroactive results. In particular, a new rule may not extinguish any rights or benefits the claimant had prior to enactment of the new rule. VAOPGCPREC 07-03 (November 19, 2003). However, if the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991), overruled in part, Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). As the Veteran's claim was received prior to the effective date of the regulation changes, the Board must consider the Veteran's right knee disability under both the old and the revised rating criteria and must apply the old rating criteria if the result is more favorable to the Veteran. Id. In this case, the Board notes that DC 5242 was amended to indicate that "degenerative arthritis of the spine" should apply to "degenerative arthritis, degenerative disc disease other than IVDS." DC 5243 was amended to indicate that the DC should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root; DC 5242 for should be assigned for all other disc diagnoses. The actual rating criteria for both DCs was not amended. When rating disabilities of the spine, any associated objective neurological abnormalities are to be rated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, DC 5242, Note (1). In this matter, no such abnormalities have been identified in any examination. A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40 ); see also DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). Turning to the evidence of record, the Veteran's low back was initially evaluated in November 2016. At that time, the Veteran reported that his back hurts when he awakens and takes the whole day to stretch it out. He reported needing to move every two hours at work due to stiffness, but did not miss any work due to his pain. He stated that he walked approximately 5 miles per day and that he also went to the gym every other day, doing 30 minutes on the stationary bike and lifting 175 pound free weights and pressing 195 pounds. He endorsed flare-ups, described as stiffness, requiring him to stand up for relief. Range of motion was normal on all planes. Pain was noted with movement, but did not cause any functional loss. He had localized tenderness between L2 and L5, bilaterally, more pronounced on the left. He was able to perform repetitive use testing with no additional loss. His examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. Muscle spasm was noted, but did not result in abnormal gait or spinal contour. He did not engage in guarding. Muscle strength was normal. Reflexes were normal in the knees, but absent in the ankles. Sensory testing was normal. He did not have any signs of radiculopathy or other neurological complications. He did not have IVDS. No ankylosis was identified, and no fixation of the spine, either actual or functional was reported. He did not use an assistive device to ambulate. Functionally, he had not missed any work, but was required to stand approximately every two hours ot stretch his back. He would not be able to complete sustained heavy physical labor. In his hearing before the undersigned, the Veteran testified that his low back condition had worsened, that he had constant pain and stiffness when not using his back. He reported needing a back brace. As such, the Board remanded this appeal for a new examination. In May 2021, the Veteran was afforded a new VA examination. At that time, the Veteran reported stiffness, constant dull pain, loss of range of motion, spasms, and tightness. Treatment included physical therapy, over-the-counter pain medications, and muscle relaxers, although he denied any current medication. He reported difficulty sitting for a long time. Flare-ups occurred daily, severe in nature, and lasting several hours. He reported that flare-ups were precipitated by prolonged sitting and standing, and that they were alleviated by rest. Particularly, he reported that sitting longer than 2 hours at work bothered his back. Forward flexion was limited to 60 degrees, with combined range of motion of 140 degrees. pain was noted on examination but did not further limit movement. Passive motion testing was deferred as it was indicated that it could cause the Veteran further pain. Pain was evidenced with weight-bearing, causing functional limitation on lifting, bending, and sitting for a prolonged period. There was evidence of crepitus, but no localized tenderness or pain on palpation. With repetitive use, forward flexion was limited to 50 degrees and combined range of motion limited to 95 degrees. Similar findings were found with repeated use over time and during periods of flare. He did have guarding and muscle spasm, but it did not result in abnormal gait or spinal contour. No additional factors contributed to his disability. Muscle strength was normal. Sensory testing was normal. Reflexes were normal. No radiculopathy or other neurological abnormalities were identified. No ankylosis or functional fixation of the spine was identified. He did not have IVDS. He used a brace regularly. Functionally, the examiner stated that it is challenging for the Veteran to lift greater than 35 pounds, sit or stand for more than 2 hours, bend over, or walk longer than one mile. Based on this evidence, the Board does not find that a rating in excess of the 20 percent assigned for the entire appeal period is supported. Specifically, even accounting for periods of flare and repeated use over time, forward flexion has been limited to no less than 50 degrees, which is greater than the 30 degrees required for a 40 percent rating under the rating criteria. There is no evidence of fixation of the spine (indeed, he remains capable of movement on all planes, albeit limited). There is no actual diagnosis of ankylosis at any point. In short, the rating criteria for a rating in excess of 20 percent have not been met during the appeal period. The Board observes that the Veteran does not have a diagnosis of IVDS, nor has he endorsed any significant incapacitating episodes of low back pain. He has not shown any evidence of any associated neurological abnormalities. During the development of this appeal, the Veteran has been granted an increased rating of 20 percent for his low back disability. However, in light of this evidence, the Board finds that a rating in excess of 20 percent is not supported for the Veteran's lumbar spine disability. As such, the claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Pryce, Counsel