Citation Nr: 21064769 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 17-44 939 DATE: October 21, 2021 ORDER Entitlement to a rating in excess of 20 percent prior to November 5, 2019 for lumbar degenerative joint disease and lumbosacral strain is denied. Entitlement to a rating in excess of 40 percent since November 5, 2019 for lumbar degenerative joint disease and lumbosacral spine is denied. FINDINGS OF FACT 1. Prior to November 5, 2019, the Veteran's lumbar degenerative joint disease is manifest by, at worst, forward flexion to 45 degrees, a combined range of motion of the thoracolumbar spine not greater than 120 degrees, with muscle spasms and guarding resulting in an abnormal gait. 2. From November 5, 2019, the Veteran's lumbar degenerative joint disease is manifest by at worst, forward flexion to 10 degrees with no ankylosis present. CONCLUSIONS OF LAW 1. Prior to November 5, 2019, the criteria for a rating in excess of 20 percent for lumbar degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237-5242. 2. From November 5, 2019, the criteria for a rating in excess of 40 percent for lumbar degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5237-5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1974 to October 1985. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision by a Department of Veteran's Affairs (VA) Regional Office (RO). In April 2019 the Board remanded the issue of entitlement to a rating in excess of 20 percent for his lumbar spine condition for further development. While on remand, the RO granted a 40 percent rating for his lumbar spine condition effective November 5, 2019. As the grant of a 40 percent disability rating was not a full grant of benefits sought on appeal, the Veteran's claim remains on appeal. The Board will proceed to address the claim on the merits. Increased Rating A disability rating is determined by applying VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate DCs. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran's disability, 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Under the General Rating Formula for Diseases and Injuries of the Spine, 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). 1. Entitlement to a rating in excess of 20 percent prior to November 5, 2019 for lumbar degenerative joint disease and lumbosacral strain. The Veteran submitted a claim for an increased rating for his back condition in April 2015. As this is a non-initial claim to an increased rating, the period on appeal begins on this date. The Veteran asserts that his lumbar spine condition worsened, and the severity of his condition is no longer accurately reflected by his 20 percent disability rating. Initially, the Board notes that the May 2015 and December 2016 VA examinations were unable to provide information in degrees as to any additional limitation of motion with repetitive use and during flare-ups. The most recent VA examination in November 2019 addressed this information as applicable and the collective evidence is considered adequate for rating purposes. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for his lumbar spine condition prior to November 5, 2019. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain and limited mobility. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he experiences flare ups 6 to 8 times per year that require rest does not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. In the Veteran's May 2015 VA examination, his forward flexion was measured to be 65 degrees. He reported that he experienced approximately 6 to 8 flare-ups in the past year. The flare ups would result in pain lasting approximately one to one and a half hours, but he was able to continue daily activities after lying down for "several hours." The examiner noted pain "on examination but does not result in/cause functional loss." There was also no pain noted with weight bearing and the Veteran was unable to participate in repetitive use testing as he experienced "labored breathing with minimal exertion." His muscle strength was noted as normal and no radiculopathy nor ankylosis was found. The Veteran was also negative for any additional neurological abnormalities and Intervertebral Disc Syndrome (IVDS). He did report using a cane regularly, but this use does not appear to be prescribed by a doctor. In the Veteran's November 2015 notice of disagreement, he again asserts that his flare ups require him to lay down until the "spasms" subside. The Veteran had an additional VA examination in December 2016 in which his forward flexion was measured to be 45 degrees. He reports flareups where he experiences increased pain, fatigue, weakness, stiffness, lack of endurance, incoordination, and limited active range of motion. The Veteran did not state how often he experiences these flare ups. He did report pain with weightbearing and the examiner noted no functional loss after three repetitions. The examiner further noted that Veteran had muscle spasms and guarding that resulted in an abnormal gait. No muscle atrophy, radiculopathy, ankylosis, IVDS, nor additional neurological issues were noted. The Veteran did report consistent use of a back brace and cane. The Veteran's May 2015, December 2016, and VA outpatient records do not contain a diagnosis of ankylosis at any point during the appeal period. However, the Veteran's VA outpatient records indicate he has consistently reported back pain from July 2004 to at least May 2020. The Board has considered whether the requirement of ankylosis can be met with evidence of the functional equivalent of ankylosis (i.e., functional immobility of the joint) during a flare-up. Chavis v. McDonough, 34 Vet. App. 1 (2021). However, the evidence does not indicate that the flare-ups during which the Veteran experiences pain, weakness, stiffness, incoordination, and limited range of motion occur with the frequency or duration to approximate the overall disability picture during the appeal period. Specifically, flare-ups 6 to 8 times per year lasting several hours are too infrequent and too short to support a finding that the overall disability picture approximates functional ankylosis. The Board finds that the requirement of ankylosis cannot be met with evidence of the functional equivalent of ankylosis in this particular case. Consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. However, the Veteran does not have IVDS and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Veteran's May 2015 and December 2016 VA examination both declined to diagnose the Veteran with IVDS. Additionally, both examinations stated that the Veteran had not required bed rest prescribed by a physician. The Veteran's outpatient VA treatment records also do not indicate a IVDS diagnosis at any time during the appeal period. Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. Furthermore, while the May 2015 and December 2016 VA examiners noted degenerative disk disease in the Veteran's lumbar spine, an additional rating is not warranted. Under DC 5003, a rating of 10 percent is for application when there is degenerative arthritis, other than post-traumatic, and the limitation of motion of the specific joint involved (here the lumbar spine) is rated as noncompensable under the appropriate diagnostic codes. However, the Veteran's current lumbar spine condition is rated under DC 5237-5242 at 20 percent disabling due to his limitation of motion. An additional rating under DC 5003 is not permitted as specifically stated above as the Veteran is in receipt of a compensable rating under the appropriate diagnostic code. See 38 C.F.R. § 4.7a, DC 5003. Furthermore, no additional rating is warranted under DC 5010 as the Veteran did not suffer a traumatic injury to the lumbar spine but rather developed a strain due his participation in sporting events while in service. Additionally, the first assertion of back pain in service was in March 1976 where the Veteran denied any trauma to the spine. See 38 C.F.R. § 4.7a, DC 5010. Based on the foregoing, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for lumber spine condition. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The claim is denied. 2. Entitlement to a rating in excess of 40 percent since November 5, 2019 for lumbar degenerative joint disease and lumbosacral spine. The Veteran contends that he is entitled to a higher rating for his lumbar spine condition. The Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for his lumbar spine condition. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, and incoordination. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he has "intermittent back flare-ups" resulting in back spasms and pain would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. The Veteran reports spasms in his back that sometimes make him fall. They are "intermittent," but the Veteran does not provide an estimate of how often this happens. Additionally, while the Veteran reports spasms that require rest to alleviate, there are no reports of the Veteran's back locking in a flexion position greater than 0 degrees. During the Veteran's November 2019 VA examination his initial range of motion for flexion was measured to be approximately 20 degrees with pain on flexion. During a flare-up the examiner estimated the Veteran's forward flexion was approximately 10 degrees. The Veteran reported lower back "twinges," pain, back spasms, and poor balance. The Veteran further reports functional loss described as difficulty using stairs, taking sharp turns, and stiffness. No ankylosis was noted but the examiner stated that the Veteran's self-limited his movements due to concerns that he would fall. The Veteran was negative for muscle atrophy, IVDS, and additional neurological abnormalities related to the lumbar spine. The examiner did note that the Veteran was experiencing bilateral lower extremity radiculopathy which for which he is already service connected. The Veteran's VA treatment records are also silent for a diagnosis of ankylosis or reports of locking in the spine. The Board has considered whether the requirement of unfavorable ankylosis can be met with evidence of the functional equivalent of ankylosis during a flare-up. Chavis, 34 Vet. App. 1. However, the evidence does not indicate that the flare-ups during which the Veteran experiences pain, weakness, stiffness, incoordination, and limited range of motion occur in any position other than zero degrees to approximate the overall disability picture of unfavorable ankylosis during the appeal period. The Board finds that the requirement of unfavorable ankylosis cannot be met with evidence of the functional equivalent of ankylosis in this particular case. Consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. However, the Veteran does not have IVDS and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Veteran's November 2019 VA examination declined to diagnose the Veteran with IVDS. His VA outpatient records are also do not contain a diagnosis of IVDS at any point during the appeal period. As stated above, regarding neurological impairment, the Veteran has already been granted service connection for radiculopathy of his bilateral lower extremities and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. Specifically, the Veteran's November 2019 VA examination did not identify any additional neurological impairments resulting from his lumbar spine condition. Regarding DC 5003, while the November 2019 VA examiner noted degenerative disk disease in the Veteran's spine, an additional rating is not warranted. The Veteran's current lumbar spine condition is rated under DC 5237-5242 at 40 percent disabling due to his forward flexion of the thoracolumbar spine being limited to 30 degrees or less. An additional rating under DC 5003 is not permitted as specifically stated above as the Veteran is in receipt of a compensable rating under the appropriate diagnostic code. See 38 C.F.R. § 4.7a, DC 5003. Furthermore, no additional rating is warranted under DC 5010 as the Veteran did not suffer a traumatic injury to the lumbar spine. See 38 C.F.R. § 4.7a, DC 5010. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 40 percent for his lumbar spine condition. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The claim is denied. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, S. Conti 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.