Citation Nr: 21068370
Decision Date: 11/10/21	Archive Date: 11/10/21

DOCKET NO. 20-14 764
DATE: November 10, 2021

ORDER

Entitlement to a disability evaluation in excess of 10 percent for spondylolisthesis with degenerative arthritis of the thoracolumbar spine is denied.

FINDING OF FACT

For the period on appeal, the Veteran's spondylolisthesis with degenerative arthritis of the thoracolumbar spine is manifested by forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees.

CONCLUSION OF LAW

The criteria for entitlement to a disability evaluation in excess of 10 percent for spondylolisthesis with degenerative arthritis of the thoracolumbar spine 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) 5242-5239.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served honorably on active duty from August 1968 to October 1988. His awards and decorations include the Bronze Star Medal, Bronze Star Medal with "V" Device, and the Purple Heart Medal, among others.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2019 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). 

Entitlement to a disability evaluation in excess of 10 percent for spondylolisthesis with degenerative arthritis of the thoracolumbar spine is denied. 

The Veteran seeks a disability rating in excess of 10 percent for his spondylolisthesis with degenerative arthritis of the lumbar spine. 

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7.

Separate ratings can be assigned for separate periods based on the facts found a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id.

The Veteran's degenerative joint disease, lumbar spine is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5242-5239. As stated above, hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional DC to identify the basis for the evaluation assigned. See 38 C.F.R. § 4.27.

Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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 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.

Unfavorable ankylosis is defined as "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." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id.

Evidence relevant to the level of severity throughout the period on appeal includes VA examinations and accompanying reports. 

The Veteran underwent a VA examination in December 2018. The examiner confirmed the diagnoses of degenerative arthritis of the spine as well as spondylolisthesis. The Veteran's symptoms were described as intermittent pain and a feeling of his "back lock[ing] up." The Veteran denied having flare-ups. However, the Veteran reported that when his "back goes out" which occurs two to three times per year, he is unable to stand or walk for two to four days following. The Veteran had abnormal range of motion findings which included: forward flexion limited to 80 degrees; extension limited to 30 degrees; right and left lateral flexion limited to 20 degrees; and right and left lateral rotation limited to 30 degrees. Pain was noted on range of motion testing and contributed to the Veteran's functional loss. The Veteran was able to perform repetitive-use testing and there was no additional loss of function or range of motion or functional loss. The Veteran had guarding and muscle spasms of the thoracolumbar spine, however, not resulting in abnormal gait or abnormal spinal contour. The Veteran had normal muscle strength and no muscle atrophy. The Veteran's reflexes were also all normal as well as a normal sensory examination. The Veteran had no signs of radicular pain or radiculopathy. There was no ankylosis, no neurological abnormalities, no use of assistive devices, and no intervertebral disc syndrome (IVDS). The VA examiner noted that the Veteran's low back disability did impact his ability to work in that his lifting, prolonged walking and/or running were all limited due to his back condition. 

The Veteran underwent an additional VA examination in March 2020. The examiner confirmed the diagnoses of degenerative arthritis of the spine as well as spondylolisthesis. The Veteran's symptoms were described as "occasionally tight" with activity and a mild level of pain daily. The Veteran reported that he no longer runs or jogs, and uses a zero-gravity chair for relief, or stretches and rests as needed. The Veteran denied having flare-ups. The Veteran had abnormal range of motion findings which included: forward flexion limited to 80 degrees; extension limited to 20 degrees; right and left lateral flexion limited to 25 degrees; and right and left lateral rotation limited to 30 degrees. Pain was noted on range of motion testing but did not cause functional loss. There was no objective evidence of localized tenderness or pain on palpation of the joint. The Veteran was able to perform repetitive-use testing and there was no additional loss of function or range of motion or functional loss. The Veteran was found to have no guarding or muscle spasms of the thoracolumbar spine. The Veteran had normal muscle strength and no muscle atrophy. The Veteran's reflexes were also all normal as well as a normal sensory examination. The Veteran had no signs of radicular pain or radiculopathy. There was no ankylosis, no neurological abnormalities, no use of assistive devices, and no IVDS. 

The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for his low back disability. The Veteran's range of motion was not limited to 60 degrees or less or combined range of motion to 120 degrees or less throughout the objective testing of record. Further, there was no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation would not result in limitation of motion more nearly approximating 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.

Consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. However, the evidence of record reflects that the Veteran does not have IVDS and 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.

Therefore, based on the foregoing, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for spondylolisthesis with degenerative arthritis of the thoracolumbar spine. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 C.F.R. § 5107; 38 C.F.R. §§ 4.3, 4.7. 

 

Bethany L. Buck

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	R. M. Lowman, 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.