Citation Nr: 21069369 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-38 526 DATE: November 18, 2021 ORDER A disability rating in excess of 40 percent for service-connected degenerative disc disease with L5-S1 herniation is denied. FINDING OF FACT The Veteran's degenerative disc disease with L5-S1 herniation has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine; invertebral disc syndrome (IVDS) with incapacitating episodes having a total duration of at least six weeks during the past 12 months has also not been shown. CONCLUSION OF LAW The criteria for a disability rating in excess of 40 percent for service-connected degenerative disc disease with L5-S1 herniation are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242-5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2006 to April 2012. The Veteran testified before a Veterans Law Judge (VLJ) in October 2019. A transcript of that hearing is of record. In June 2021, the Board notified the Veteran by letter that the VLJ who had conducted the October 2019 hearing was no longer employed by the Board. The Veteran was made aware of his options, which included the opportunity to have another optional Board hearing. He was also advised that if the Veteran did not respond within 30 days from the date of the letter, the Board would assume he did not want another hearing and proceed accordingly. As the Veteran has not responded to the June 2021 letter, the Board assumes the Veteran does not want to present testimony before another VLJ. In January 2020, the Board remanded this case for additional development. As a result of the additional development completed, the Regional Office (RO) issued a November 2020 rating decision which increased the Veteran's disability rating for service-connected degenerative disc disease with L5-S1 herniation from 20 percent to 40 percent, effective April 28, 2012, the date following his separation from service. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities found in 38 C.F.R. Part 4. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, 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. 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). The basis of disability evaluation 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. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id. (quoting 38 C.F.R. § 4.40). With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). An examiner must also attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to a disability rating in excess of 40 percent for service-connected degenerative disc disease with L5-S1 herniation In a July 2012 rating decision, service connection for degenerative disc disease with L5-S1 herniation without radiculopathy was granted and assigned a 20 percent disability rating, effective April 28, 2012. As noted above, a November 2020 rating decision has since increased the disability rating to 40 percent, also effective April 28, 2012. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) for Diagnostic Codes 5235 to 5243. Diagnostic Code 5237 is used in rating lumbosacral strain, Diagnostic Code 5242 is used in rating degenerative arthritis of the spine, and Diagnostic Code 5243 is used in rating intervertebral disc syndrome (IVDS) of the spine. 38 C.F.R. § 4.71a. The Veteran does not have a diagnosis of IVDS of the spine, and therefore, Diagnostic Code 5243 is not applicable. Under the General Rating Formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, a 10 percent rating will be assigned 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 of more of height. 38 C.F.R. § 4.71a. A 20 percent 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 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 rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. 38 C.F.R. § 4.71a. 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. 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. Id. at Note(2); see also 38 C.F.R. § 4.71, Plate V. Fixation of a spinal segment in neutral position (zero degrees) represents favorable ankylosis. 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 certain restricted movements or other symptoms which are not present herein. 38 C.F.R. § 4.71a, General Rating Formula, Note (5). Under the General Rating Formula, any associated objective neurologic abnormalities are separately rated under the appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). The Board notes that the General Rating Formula rating criteria was not affected by the February 7, 2021 amendments. A review of the relevant evidence shows the Veteran presented for a VA spine examination in June 2011. At that time, he reported experiencing stiffness, spasms, decreased motion, parasthesia and numbness. The Veteran reported he did not experience fatigue, bowel or bladder problems or erectile dysfunction in relation to the spine condition, but he did have numbness in the left foot. He was diagnosed with lumbar strain with objective factors including tenderness, spasms, guarding and diminished range of motion of the lumbosacral spine with no x-ray evidence of degenerative disc and/or joint disease. On examination, the Veteran was noted to be right hand dominant. His posture was normal, and he walked with a steady, normal gait. He did not require an assistive device for ambulation. There was no evidence of radiating pain on movement. Muscle spasms were present but did not produce abnormal gait. There was tenderness noted on examination described as tender in the L3 to L5 area. Spinal contour was preserved, though there was tenderness. Guarding of movement which, which was described as guarding follows spasm, did not produce anormal gait. Moreover, the examination did not reveal any weakness, muscle tone was normal, musculature was normal and there was positive straight leg raising on the right as well as left. Lasègue's sign was negative. There was no atrophy or ankylosis of the thoracolumbar spine present. Range of motion testing showed the Veteran had 45 degrees of flexion with painful motion at 45 degrees, 20 degrees of extension with pain at 20 degrees, 20 degrees of right lateral flexion with pain at 20 degrees, 15 degrees of left lateral flexion with pain at 15 degrees, 30 degrees of right rotation with pain at 30 degrees and 30 degrees of left rotation. The joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance of incoordination after repetitive use. The inspection of the spine also revealed normal head position with symmetry and normal curves of the spine. See June 2011 VA examination. At the October 2019 Board hearing, the Veteran testified that his back condition had worsened, and noted that he had had episodes of severe back pain four to five times in the last year. He also reported as during the June 2011 VA examination that he had flare-ups that affected his back range of motion, affecting bending. He testified he still had flare-ups. See October 2019 Hearing Transcript. In January 2020 the Board issued a decision that granted service connection for left lower extremity radiculopathy and remanded the increased rating claim for degenerative disc disease with L5-S1 herniation for another VA examination to determine the current severity of that disability. In November 2020, the Veteran was afforded a VA examination wherein degenerative disc disease with L5-S1 herniation with left lower extremity radiculopathy was diagnosed. At the examination, the Veteran described a history of back pain dating back to 2011. The condition had progressed/worsened. His current symptoms included radiation of the pain to the left lower extremity. X-ray and physical therapy have been done that showed degenerative changes but there had been no injections or surgery. Over the counter anti-inflammatories were used as needed for symptom control. The Veteran reported flare-ups of the back, requiring him to lay on the ground. He also described functional loss in terms of not being able to do a lot of walking. Range of motion testing showed 40 degrees of forward flexion and 20 degrees of extension, bilateral lateral flexion, and bilateral lateral rotation. The decreased of range of motion did reduce power, resulting in a weaker joint. Pain was noted on examination and caused functional loss with forward flexion, extension, as well as bilateral lateral flexion and rotation. There was no objective evidence of localized tenderness or pain on palpation of the joint or pain with weight bearing. The Veteran was observed with repetitive use and did not have additional loss of function or range of motion. Factors including weakness, pain and lack of endurance were noted as causing functional loss. The Veteran was not examined immediately after repetitive use over time but pain, weakness, fatigability, or incoordination significantly limited the functional ability with repeated use over a period of time. Factors including pain, weakness and lack of endurance were again noted as limiting functional loss. The examiner was not able to describe the loss in terms of range of motion but daily pain and discomfort were noted. The pain was described as moderate with overuse from activity. Resting the joint typically alleviated the pain. Although the Veteran was not examined following repetitive use over time, after examining the Veteran and having a conversation with him, the examiner indicated that walking, or lifting too much (repetitive use) would trigger pain, weakness, and lack of endurance without any noted change in range of motion. Additionally, the examiner indicated the examination was not conducted during a flare-up, but pain, weakness, fatigability, or incoordination were noted as significantly limiting functional abilities with a flare-up. Factors including pain and lack of endurance would cause functional loss but the examiner was unable to describe in terms of range of motion. The frequency of the Veteran's flare-ups was monthly of a severe level. Overuse with strenuous activity would cause the flare-ups and would require rest of alleviate. While the examination was not performed during a flare-up, the examiner noted flares would likely cause increased pain and lack of endurance which would likely affect the range of motion. The examiner estimated the Veteran's range of motion during a flare would be limited to 25 degrees of forward flexion and 10 degrees of extension, as well as bilateral lateral flexion and rotation. There was no guarding or muscle spasms noted. Additional factors contributing to disability included less movement than normal, weakened movement due to muscle or of peripheral nerves, as well as lack of endurance. Daily use and wear on the spine for prolonged periods cause significant discomfort and functional limitations. Pain on range of motion examination causes less movement noted with the spine and range of motion and associated pain caused weakened movement of the spine. Muscle strength testing was slightly diminished with 4/5 hip flexion but otherwise normal muscle strength. There was no atrophy noted. Straight leg testing was negative, and sensory examination was normal with the exception of decreased sensation in the left lower leg and foot. Moderate radiculopathy in the left lower extremity was noted. However, the Veteran's spine was not ankylosed, he had no other neurologic abnormalities and no IVDS. An assistive device was not used for ambulation. Lastly, there was evidence of pain when the back was used in non-weight bearing, passive range of motion for the back was the same as active range of motion, and range of motion was the same with objective evidence of pain on passive range of motion. See November 2020 VA examination. In a medical addendum opinion regarding the Veteran's flares, the November 2020 VA examiner reported the Veteran's flares lasted about one hour but there were no specific measurements based on the direct observation. Instead, the examiner had provided an estimate of the degree of functional loss during a flare in his VA examination report. The examiner noted further that a flare of the condition induced more pain limiting function, regarding weakness and endurance. The examiner also stated it was possible to provide a specific measurement without speculation, based on an estimate of additional impairment during a flare as a result of his medical background, continuing medical education, medical knowledge, and hands-on treatment of these types of conditions for multiple years. See November 2020 VA Medical Opinion. VA treatment records for the entire period at issue show decreased range of motion in the back due to pain. An October 2012 x-ray study of the Veteran's back showed early degenerative changes in the lower thoracic spine with mild scoliosis. In a January 2013 notation, the Veteran's lumbar spine range of motion was noted to be limited by 25 percent. See VA treatment records. After reviewing the foregoing evidence, the Board finds that the preponderance of the evidence is in favor of the currently assigned 40 percent rating for lumbar strain for the entire appeal period. This rating contemplates forward flexion of the thoracolumbar spine of 30 degrees or less. A higher 50 percent rating is not warranted because the Veteran does not have unfavorable ankylosis of the entire thoracolumbar spine or a diagnosis of IVDS requiring incapacitating episodes having a total duration of at least six weeks during the past 12 months. The Board acknowledges the Veteran's lay reports of multiple lumbar symptoms resulting in functional loss due to pain and flare-ups. Clinical findings confirm his lay statements regarding his symptoms shown on examinations including limitation of motion of the lumbar spine as well as flare-ups causing additional limitation of motion. Most notably, the November 2020 VA examiner opined that with consideration of the Veteran's descriptions of flare-ups, his flexion of the lumbar spine would be limited to 25 degrees of forward flexion and 10 degrees of extension, as well as 10 degrees of bilateral lateral flexion and rotation. The clinical evidence during the entire appeal period also confirms that the Veteran had pain on various range of motion of the thoracolumbar spine, as well as pain on flare-ups, weight bearing and even on passive motion of the spine. In this regard, the medical evidence consistently showed lumbar spine pathology resulting in functional loss including that caused by pain on motion of the lumbar spine. However, notwithstanding the clear evidence of flare-ups with limited range of motion and functional loss, the Board is unable to conclude that there is a basis for a higher rating for unfavorable ankylosis of the entire thoracolumbar spine as the clinical records have consistently reported that there was no evidence of ankylosis, favorable or unfavorable. The Veteran's lumbar spine symptoms including functional loss and pain are contemplated by the 40 percent evaluation during the entire appeal period. Further, the Veteran is separately service connected for the left lower extremity radiculopathy which has been shown on examination. There are no neurologic associated bowel or bladder or shown. The evidence of record does not support a rating in excess of 40 percent during the entire appeal period for degenerative disc disease with L5-S1 herniation. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Churchwell, 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.