Citation Nr: 21066785 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 11-14 055 DATE: November 2, 2021 ORDER Entitlement to a disability rating of 20 percent, though no higher, prior to April 3, 2019 for lumbar spine degenerative disc disease with retrolisthesis is granted. Entitlement to a disability rating in excess of 20 percent from April 3, 2019 for lumbar spine degenerative disc disease with retrolisthesis is denied. FINDING OF FACT Throughout the duration of the appeal, the probative evidence of record demonstrates that the Veteran's lumbar spine degenerative disc disease with retrolisthesis, at worst, has been productive of pain and objective findings of flexion to 40 degrees, extension to 5 degrees with pain, additional functional loss with repeated use over time but no additional limitation of motion; there were no findings of incapacitating episodes in a 12 month period, forward flexion to 30 degrees or less, or favorable or unfavorable ankylosis of the thoracolumbar spine or the entire spine. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 20 percent, though no higher, prior to April 3, 2019 for lumbar spine degenerative disc disease with retrolisthesis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.71a, (Diagnostic Codes) DCs 5237, 5242. 2. The criteria for a disability rating in excess of 20 percent from April 3, 2019 for lumbar spine degenerative disc disease with retrolisthesis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.71a, DCs 5237, 5242. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from August 1978 to September 2002. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). A December 2019 Board decision denied an increased rating for the lumbar spine disability and entitlement to a total disability rating based on individual unemployability (TDIU). The Veteran appealed the decision to deny an increased rating for a lumbar spine disability to the United States Court of Appeals for Veterans Claims (Court). By a September 2020 Order, the Court vacated and remanded the issue of entitlement to an increased disability rating for a lumbar spine disability to the Board pursuant to the terms of a September 2020 Joint Motion for Remand. The Board remanded the appeal in February 2021 in compliance with the terms of the Joint Motion and remanded the appeal again in June 2021 for additional development. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different "staged" ratings may be warranted for different time periods. Where the question for consideration is the propriety of the initial evaluation assigned after the granting of service connection, separate ratings may also be assigned for separate periods of time based on facts found, i.e., "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant 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. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). Although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). 38 C.F.R. § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). In order to be adequate, VA examinations must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). VA examiners must provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this case, the July 2021 VA examiner who examined the Veteran's spine documented whether there was pain on movement in active and passive ranges of motion as well as pain in weight-bearing and in non-weightbearing positions in the back. The Board similarly finds Sharp compliance, in that the VA examiner sought information from the Veteran regarding flare ups of the thoracolumbar spine. However, as the VA examination report specified that the Veteran did not report flare ups, no estimation of limitation of motion could be provided. The VA examiner did provide estimated limitation of motion with repetitive use over time. Therefore, the failure to discuss flare-ups is harmless error as the Veteran specifically reported having no flare-ups at the time of the July 2021 VA examination. Accordingly, the Board finds that a remand for new examinations under Sharp would serve no useful purpose. As the July 2021 VA examination addressed weight bearing, non-weight-bearing, and active and passive motion and sought information regarding flare-ups with the Veteran reporting he had no flare-ups, the examination is adequate for rating purposes and a remand would be unnecessary. Finally, the Board observes that changes were made to several musculoskeletal rating codes in 38 C.F.R. § 4.71, effective February 7, 2021. Although recent changes included adding DC 5242 to include degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome which is rated under the General Rating Formula for Diseases and Injuries of the Spine, as there were no substantive changes to the DCs 5237, 5242 or the General Rating Formula for Diseases and Injuries of the Spine, the Board is able to proceed with a decision on these issues. Lumbar Spine Degenerative Disc Disease with Retrolisthesis The Veteran's lumbar spine disability is rated under 38 C.F.R. § 4.71a, DCs 5237-5242. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. DC 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved unless there is noncompensable limitation of motion. 38 C.F.R. § 4.71a. The rating criteria for DC 5003 are discussed above. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (in other words under DCs 5235 to 5242, unless evaluated instead under DC 5243, the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes). 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: A 10 percent evaluation 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 rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine; or forward flexion of the thoracolumbar spine 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 rating is warranted for unfavorable ankylosis of the entire spine. The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate DC. 38 C.F.R. § 4.71a, DCs 5235-5243. Note (2) provides that, for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See also 38 C.F.R. § 4.71a, Plate V. Note (3) provides that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4) provides that the rater is to round each range of motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6) provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Under DC 5243, intervertebral disc syndrome (IVDS) or disc disease may be rated under the General Rating Formula for Diseases and Injuries of the Spine, which includes combining separate evaluations of the chronic orthopedic and neurologic manifestations, or under the Formula for Rating IVDS Based on Incapacitating Episodes, which are rated on the total duration of incapacitating episodes over the past 12 months, whichever results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under the Formula for Rating IVDS Based on Incapacitating Episodes, if there are incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months, a 10 percent rating is warranted. If there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent rating is warranted. If there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent rating is warranted. If there are incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent rating is warranted. 38 C.F.R. § 4.71a. Note (1) in DC 5243 defines an incapacitating episode as a period of acute signs and symptoms requiring bed rest prescribed by a physician and treatment by a physician. Supplementary information in the published final regulations states that treatment by a physician would not require a visit to a physician's office or hospital but would include telephone consultation with a physician. If there are no records of the need for bed rest and treatment, by regulation, there are no incapacitating episodes. Id. Throughout the duration of the appeal, the probative evidence of record, including private and VA medical records and various VA examinations, demonstrates that the Veteran's lumbar spine degenerative disc disease with retrolisthesis, at worst, has been productive of pain and objective findings of flexion to 40 degrees, extension to 5 degrees with pain, additional functional loss with repeated use over time but no additional limitation of motion. This evidence also demonstrates there have been no findings of incapacitating episodes in a 12 month period, forward flexion to 30 degrees or less, or favorable or unfavorable ankylosis of the thoracolumbar spine or the entire spine. As the most disabling findings were recorded in the March 2021 and April 2019 VA examinations, the Board observes that these findings include the severity of Veteran's lumbar spine disability for the period prior to this examination as well when considering that VA examinations only reflect a snapshot in time of the Veteran's overall disability. Although the Veteran's lumbar flexion was recorded at 90 degrees in the October 2010, May 2016, May 2017 and July 2021 VA examinations, the most disabling findings were in the April 2019 and March 2021 VA examinations. In so finding, the Board observes that, although these two VA examinations were found to have inadequacies regarding Correia and Sharp compliance, they include the most favorable thoracolumbar spine range of motion findings, which are not among of the inadequacies found in these examinations and thus, these range of motion findings are the most probative range of motion findings in the record. Accordingly, the Board resolves doubt in favor of the more favorable findings of record and finds that the lumbar spine degenerative disc disease with retrolisthesis more nearly approximates the criteria for a higher 20 percent disability rating for the period prior to April 3, 2019 and more nearly approximates the criteria for a 20 percent disability rating currently assigned from April 3, 2019, under DCs 5237 and 5242. 38 C.F.R. § 4.71a. While pain and limitation of function were noted throughout the duration of the appeal, there have been no findings that these limitations were akin to forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable or unfavorable ankylosis of the thoracolumbar or entire spine, including the considerations of pain, functional limitations and limitations with repetition and repetitive use over time. In fact, the July 2021 VA examiner considered the Veteran's additional limitation of function, pain and range of motion with repeated use over time when she estimated the range of motion with repetitive use over time limited flexion to 90 degrees. Thus, in considering the complaints and findings of pain in the thoracolumbar spine and complaints and findings of pain and additional functional loss in conjunction with 38 C.F.R. § 4.40, 4.45, 4.59, consistent with the decision in DeLuca v. Brown, 8 Vet. App. 202 (1995), the Board finds the evidence supports no more than a 20 percent disability rating for lumbar spine degenerative disc disease with retrolisthesis throughout the duration of the appeal period. See Voyles v. Brown, 5 Vet. App. 451, 454 (1993); Johnston v. Brown, 10 Vet. App. 80, 85 (1997); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board has considered whether separate ratings are warranted based on neurological manifestations of the thoracolumbar spine disability. In this case, the Veteran is already separately rated under DC 8521 for radiculopathy in the right lower extremity and left lower extremity. 38 C.F.R. § 4.124a. Even considering the findings of mild paresthesias and dysesthesias in the lower extremities in the July 2021 VA examination, these findings would not provide for higher disability ratings than are currently assigned under DC 8521. Accordingly, except for the findings of radiculopathy in the lower extremities, which are already separately rated, no additional neurological manifestations have been demonstrated by the objective findings of record. The Board has considered the lay statements of record regarding the severity of the Veteran's lumbar spine disability and has relied on these reports in determining appropriate disability ratings under the benefit-of-the-doubt doctrine. 38 C.F.R. §§ 4.3, 4.7. The Veteran is competent to report on factual matters of which he has firsthand knowledge and his statements regarding his symptoms are also credible, and thus, probative. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Baldwin v. West, 13 Vet. App. 1 (1999). Where the Veteran has not discussed particular findings that are necessary for application to the rating criteria, the Board has accorded greater probative weight to objective medical findings of record which specifically address the rating criteria. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Accordingly, the Veteran's lumbar spine degenerative disc disease with retrolisthesis warrants a disability rating of 20 percent, though no higher, prior to April 3, 2019 under DCs 5237 and 5242 and does not warrant a disability in excess of 20 percent at any time throughout the duration of the appeal under DCs 5237 or 5242. 38 C.F.R. §§ 4.3, 4.7, 4.71a; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Saira Spicknall, 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.