Citation Nr: 21069115 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 15-36 602 DATE: November 17, 2021 ORDER Entitlement to a rating in excess of 40 percent for lumbosacral strain with traumatic degenerative joint disease (DJD) is denied. FINDING OF FACT During the appellate period, the Veteran's lumbosacral strain with traumatic DJD has manifested as forward flexion being limited to 20 degrees with favorable ankylosis of the thoracolumbar spine; the evidence does not support a finding of incapacitating episodes of six weeks or more in the past twelve months due to his intervertebral disc syndrome (IVDS), or unfavorable ankylosis. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for lumbosacral strain with traumatic DJD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code (DC) 5242 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1988 to June 1995. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board issued a prior remand on this claim in July 2019. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Pertinent regulations also provide that it is not necessary for all of the individual criteria to be present as set forth in the Rating Schedule, but that findings sufficient to identify the disability and level of impairment be considered. 38 C.F.R. § 4.21. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 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. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Id. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Veteran's lumbosacral strain is rated under DC 5242 for degenerative arthritis and degenerative disc disease (DDD), which falls under the general rating formula for diseases and injuries of the spine. Under 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, for ratings for the thoracolumbar 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 assigned if there is forward flexion of the thoracolumbar spine of 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating is assigned if there is unfavorable ankylosis of the entire thoracolumbar spine. Finally, a 100 percent rating may be assigned if there is unfavorable ankylosis of the entire spine. For VA compensation purposes, 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 thoracolumbar spine is 240 degrees. 1. Entitlement to a rating in excess of 40 percent for lumbosacral strain with traumatic DJD. On June 17, 2014, the Veteran requested an increased rating for his back condition, which was then rated at 10 percent. The Veteran was given a VA examination for his back in August 2014. Here, the examiner diagnosed lumbosacral strain and degenerative arthritis of the spine and noted that the Veteran reported frequent flareups of low back pain lasing for 4-6 hours. He found the Veteran's forward flexion to be to 30 degrees with objective evidence of pain beginning at the same. The examiner also noted muscle spasms and guarding resulting in abnormal gait or abnormal spinal contour. No ankylosis was found. Finally, the examiner diagnosed IVDS finding incapacitating episodes over the previous 12 months to have a total duration of at least one week, but less than two weeks. Based on the results of this examination, the RO issued a May 2015 rating decision granting service connection for lumbar radiculopathy of the bilateral lower extremities secondary to the Veteran's lumbosacral strain with traumatic DJD, and increased the evaluation of such to 40 percent, effective June 17, 2014, the date of his increased rating request. The Veteran was given another VA examination for his back in June 2016. Here, the examiner noted flareups with prolonged sitting and found the Veteran's forward flexion to be limited to 50 degrees. While the examiner noted pain on exam which caused functional loss, the examiner did not provide a degree at which the Veteran's objective pain began. No additional range of motion loss was noted. The examiner found muscle spasm, localized tenderness, and guarding resulting in abnormal gait or abnormal spinal contour. No ankylosis was found, but the examiner did diagnose IVDS and with regard to incapacitating episodes wrote "bed rest when pain occurs." Based on this examination, the RO issued an August 2016 rating decision decreasing the evaluation of the Veteran's lumbosacral strain to 20 percent, effective June 8, 2016, the date of the examination. The RO also increased the evaluations for the lower extremities. The Veteran appealed the decrease in evaluation up to the Board contending that the June 2016 VA examination was inadequate. (Of note, the Veteran did not appeal the evaluations assigned the lower extremities.) In July 2019, the Board issued a decision finding the reduction in rating for the Veteran's lumbosacral strain was not proper and reinstated the 40 percent rating. In this same decision, the Board remanded the claim for a rating in excess of 40 percent for the Veteran's lumbosacral strain in order to provide him with an adequate examination in compliance with recent caselaw. In September 2019, the Veteran submitted a thoracolumbar spine disability benefits questionnaire (DBQ) completed by his chiropractor. Here, the Veteran was found to have ankylosis of the thoracic spine and DDD of the lumbar spine. The Veteran's forward flexion was found to be limited to 20 degrees, with "weight-bearing, repetitive tasks cause more discomfort and loss of function vs. non-weight-bearing activities." However, no additional range of motion loss was noted by range. The examiner found the Veteran to have guarding and muscle spasm resulting in abnormal gait and abnormal spinal contour. Moreover, the examiner found the Veteran to be to suffering from favorable ankylosis of the entire thoracolumbar spine. Finally, the examiner noted IVDS, but found no incapacitating episodes. The Veteran was given another VA examination for his back in December 2019. Here, the Veteran reported flareups 3-5 times a week lasting 1-3 days. The Veteran further reported his functional loss as "Stand 8 minutes, sit for 4 minutes, walk 5 feet, and lift 2-3 lbs." The examiner found the Veteran's forward flexion to be limited to 20 degrees with pain noted on exam that caused functional loss. However, no additional range of motion loss was noted on exam with regard to repetitive use, repetitive use over time, or flareups. No guarding or muscle spasm was noted, nor was there ankylosis. The examiner did find IVDS but found no incapacitating episodes of the last 12 months. Under remarks the examiner specifically noted "After examination of the Veteran, listening to their complete history and current subjective complaints, combined with a review of the available records, and clinical experience, I have no basis to offer additional losses of function or motion when it comes to repetitive use or during a flare-up." The Board finds the record does not support a rating in excess of 40 percent for the Veteran's lumbosacral strain with traumatic DJD. In a September 2021 appellate brief, the Veteran, through his representative contended that he should be entitled to a higher rating under the IVDS formula on incapacitating episodes (DC 5243) for episodes lasting 4-6 weeks, or at least 6 weeks during the last 12 months. The Board notes that while the Veteran's condition could be rated under such formula, it would result in a lower rating than what is already assigned. Specifically, the Formula for Rating IVDS based on Incapacitating Episodes assigns a 10 percent rating for episodes lasting at least one week, but less than two weeks during the past 12 months. Moreover, for purposes of rating under this formula, the Veteran must show symptoms of IVDS "that requires bed rest prescribed by a physician and treatment by a physician." The record contains no such prescription for bedrest, nor does it support a finding that the Veteran has experienced any incapacitating episodes lasting for at least 6 weeks, which is what would be required for the assignment of the next higher rating of 60 percent. Furthermore, the Board notes that effective February 7, 2021 DC 5243 was revised to read "Assign this diagnostic code 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." Thus, the Veteran's lumbosacral strain with traumatic DJD has been correctly rated under DC 5242, under which a 40 percent rating is the maximum evaluation available for limitation of motion of the spine in the rating schedule. Also, a 40 percent rating is assigned for favorable ankylosis. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Accordingly, the 40 percent rating contemplates the Veteran's September 2019 DBQ finding of favorable ankylosis of the entire thoracolumbar spine. The Board notes, however, that no VA examiner found ankylosis of the Veteran's spine. 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 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. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). The Board does not find that the medical evidence and the Veteran's description of the functional impairment he experiences as a result of his low back disability demonstrates the level of disability associated with unfavorable ankylosis of the thoracolumbar spine, which is the criteria associated with the next higher rating of 50 percent under DC 5242. As the preponderance of the evidence is against the claim, entitlement to a rating in excess of 40 percent for lumbosacral strain with traumatic DJD is denied. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Ruiz, 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.