Citation Nr: 21067685 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 14-37 881 DATE: November 5, 2021 ORDER Entitlement to a rating in excess of 20 percent, prior to June 21, 2021, and in excess of 40 percent thereafter, for degenerative disc disease (DDD) of the lumbar spine is denied. FINDINGS OF FACT 1. Prior to June 21, 2021, the Veteran's DDD of the lumbar spine was manifested by symptoms of forward flexion limited to 60 degrees, at its worst; pain on movement; flare-ups which caused pain with prolonged walking and standing; functional loss of less movement than normal and instability of station. There was no objective evidence of ankylosis or other neurological abnormalities (other than the already service-connected radiculopathy) attributed to the lumbar spine. 2. From June 21, 2021, the Veteran's DDD of the lumbar spine has been manifested by symptoms of forward flexion limited to 25 degrees, at its worst, pain on movement; flare-ups which caused pain with prolonged walking and standing; functional loss of less movement than normal and instability of station. There was no objective evidence of ankylosis or other neurological abnormalities (other than already service-connected radiculopathy) attributed to the lumbar spine. . CONCLUSIONS OF LAW 1. Prior to June 21, 2021, the criteria for a rating in excess of 20 percent for DDD of the lumbar spine was not met. 38 U.S.C. §§ 1155, 5107, 7104; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code (DC), 5242. 2. From June 21, 2021, the criteria for a rating in excess of 40 percent for DDD of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107, 7104; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code (DC), 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1984 to May 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the Veteran's electronic claims folder. In March 2021, the Board remanded the matters of entitlement to a rating in excess of 20 percent for DDD of the lumbar spine; entitlement to service connection for sciatica of the right lower extremity and entitlement to a total disability rating based on individual unemployability (TDIU). In May 2021, the Veteran instructed the RO to withdraw his claim for entitlement to TDIU. Therefore, that matter is no longer before the Board. Further, in an August 2021 rating decision, the RO granted the Veteran's claim for entitlement to service connection for radiculopathy of the right lower extremity. As this represents a total grant of the benefits sought, the Boards finds that matter is no longer before the Board. Entitlement to a rating in excess of 20 percent, prior to June 21, 2021, and in excess of 40 percent thereafter, for DDD of the lumbar spine The Veteran contends that he is entitled to an increased rating for his DDD of the lumbar spine because he is unable to straighten his back or walk due to pain. See November 2012 VA Form 21-4138. He further testified that some days he is unable to bend over to put on shoes and socks. See Board Hearing Transcript, p. 6. For the reasons explained below, the Board finds that entitlement to an increased warranted is not warranted. The Veteran is rated under Diagnostic Code 5242 for his DDD of the lumbar spine. 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 results in the higher rating. See 38 C.F.R. § 4.71a, DC 5235-5243. A 20 percent disability 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. A 40 percent disability 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 disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Note (1): Objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, DC 5235-5243. Note (5): Unfavorable ankylosis is a condition in which the entire thoracolumbar spine or the entire spine is fixed in flexion or extension, and the ankylosis results in more 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. 38 C.F.R. § 4.71a, DC 5235-5243. Intervertebral disc syndrome (IVDS) is 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 Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes warrants a maximum 60 percent rating when rating based on incapacitating episodes, and such is assigned when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is assigned for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. Note 1 provides that for the purposes of evaluations 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. "Chronic orthopedic and neurological manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Revisions to Musculoskeletal ratings, effective February 7, 2021, refer the rater to assign Diagnostic Code 5243 only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses. It should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. The Veteran was afforded VA spine examinations in February 2012, June 2014, June 2018 and July 2021. Except for the July 2021 VA examination, the Veteran's forward flexion measured to 60 degrees at its worst. There was evidence of pain with movement; episodes of flare-ups and IVDS, with no incapacitating episodes. There was no objective evidence of ankylosis. There was evidence of radiating pain to the lower extremities. Pain noted on examination caused functional loss. The Veteran reported that during flare-ups, he is limited from walking. The July 2021 VA examination report indicated that the Veteran's forward flexion was limited to 25 degrees, at its worst. Pain noted on examination caused functional loss. The Veteran endorsed daily episodes of flare-ups. There was no evidence of ankylosis or IVDS but there was evidence of crepitus. Private chiropractic treatment records indicate that the Veteran complained of lower back pain but was responding to conservative treatment. In a November 2012 VA Form 21-4138, the Veteran stated that he was treated in the emergency room for his back 2 times. In a January 2013 VA Form 21-4138, he indicated that he had back surgery and did not work for 8 weeks (a temporary total was granted from January 28, 2013 to April 30, 2013). An August 2016 lumbar MRI indicates that the Veteran suffered from chronic pain and was diagnosed with osteoarthritis and mild narrowing of neural foramina bilaterally. Based on the foregoing, the Board finds that the Veteran is not entitled to a rating in excess of 20 percent, prior to June 21, 2021 or a rating in excess of 40 percent thereafter. In that regard, prior to June 21, 2021, the Veteran's forward flexion, at its worst, was limited to 60 degrees, which would warrant a 20 percent rating and thereafter was limited to 25 degrees, at its worst, which would warrant a 40 percent rating. The Board credits the VA examination reports as the examiners conducted objective testing and considered the Veteran's lay statements. The Board has further considered whether factors including functional impairment and pain as addressed under 38 C.F.R. §§ 4.40 and 4.45 would warrant higher ratings. See DeLuca, 8 Vet. App. at 202. However, the Board also finds that the 20 and 40 percent ratings account for the functional loss caused by the Veteran's lumbar back pain. Even considering functional impairment, there is no evidence that prior to June 21, 2021, the Veteran's functional impairment more closely resembled forward flexion of 30 degrees or less. The Board acknowledges the Veteran's Board testimony that some days are worse than others and that some days it is difficult for him to put on his shoes. However, normal forward flexion of the thoracolumbar spine is zero to 90 degrees. If the Veteran were to be in a seated position and bent over to tie his shoes, that would assume full range of forward flexion 90 degrees. The Veteran has testified that he cannot complete such an action, but his testimony does not specify how much less than 90 degrees the Veteran is able to forward flex. Other medical evidence specifies the Veteran's specific range of motion limitations and prior to June 21, 2021, no evidence shows forward flexion 30 degrees or less. Similarly, there is no evidence that from June 21, 2021, the Veteran's functional impairment more closely resembled ankylosis of the lumbar spine. There is a clear indication of worsening of the Veteran's symptoms beginning in June 2021, which warranted the already assigned 40 percent rating, but no higher. In that regard, there is no competent evidence that the Veteran has unfavorable ankylosis of the entire thoracolumbar spine. The Board has considered whether any other diagnostic codes would allow for a higher rating. There is evidence that the Veteran suffers from radiculopathy of the lower extremities. The Veteran is service-connected for radiculopathy of the right and left lower extremities and there is no evidence that his radiculopathy is more severe than already rated nor has he asserted otherwise. Further, the June 2014 and June 2018 VA examiners opined that the Veteran had a diagnosis of IVDS. However, the Board finds that the Veteran is not entitled to a higher rating under Diagnostic Code 5243 as there was no evidence of incapacitating episodes associated with the IVDS. Based on the changes in the severity of the Veteran's symptoms, the Board finds that the already assigned staged ratings of 20 percent prior to June 21, 2021 and 40 percent thereafter for DDD of the lumbar spine are appropriate and the Veteran is not entitled to an increased rating. In reaching this decision, the Board has considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim for an increased rating, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Baskerville 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.