Citation Nr: 21072994 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 17-01 160 DATE: December 7, 2021 ORDER Entitlement to an initial rating in excess of 40 percent for a lumbar spine disability is denied. FINDING OF FACT Throughout the appellate period, the Veteran's lumbar spine disability did not manifest or approximate unfavorable ankylosis of the thoracolumbar spine. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for a lumbar spine disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2005 to November 2013. This matter comes before the Board of Veterans' Appeals (Board) from a June 2014 rating decision by the Department of Veterans Affairs (VA). This issue was denied by the Board in a December 2018 decision. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court), which in February 2020, vacated the decision pursuant to a January 2020 Joint Motion for Remand. The Board remanded the appeal in July 2020 for additional development. The appeal returns for appellate consideration. Entitlement to an initial rating in excess of 40 percent for a lumbar spine disability is denied. The Veteran's low back condition is diagnosed as degenerative joint disease (DJD) with intervertebral disc syndrome (IVDS) and evaluated under Diagnostic Code 5242. He currently is receiving a 40 percent disability evaluation, effective from November 13, 2013, the date after his discharge from active service. He contends that his functional loss due to pain, flare-ups, fatigability, and that he loses 100 percent of his range of motion during flare-ups. See October 2021 Appellate Brief. For the reasons listed below, the Board finds that the Veteran's lumbar spine disability is not manifested by or more nearly approximated by unfavorable ankylosis of the thoracolumbar spine, even considering incapacitating episodes or loss of function during flare-ups. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. VA must, in some circumstances, consider functional loss in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); 38 C.F.R. §§ 4.40, 4.45. DCs 5242-5237 provide ratings pursuant to the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 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, the following ratings will apply. Disability of the spine may be evaluated under either the General Rating Formula or under the formula for rating IVDS based on incapacitating episodes (Diagnostic Code 5243), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Diagnostic Code 5243 provides evaluations for IVDS based on the frequency of incapacitating episodes. An "incapacitating episode" for purposes of totaling the cumulative time is defined as "period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." 38 C.F.R. § 4.71a, Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1. No such episodes are noted in the record, and hence these criteria are not for application. A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less or with 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. 38 C.F.R. § 4.71a. Although the portion of the rating schedule that addresses the musculoskeletal system was revised effective February 7, 2021, the General Ratings Formula was not changed as relevant to this appeal. 85 Fed. Reg. 76,453 (Nov. 30, 2020), as corrected at 85 Fed. Reg. 85,523 (Dec. 29, 2020) and 86 Fed. Reg. 8,142 (Feb. 4, 2021). Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. VA examiners must record the results of range of motion testing "for pain on both active and passive motion and 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); 38 C.F.R. § 4.59. The spine has no opposite joint. VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran underwent a lumbar spine evaluation in April 2014. He was diagnosed with DJD of the L4-L5, L5-S1 with moderate neural foraminal narrowing on the right and IVDS; the disability was related to an in-service injury. He began experiencing pain at 80 degrees on flexion, 20 degrees on extension, lateral flexion and rotation was pain at 20 degrees in both directions. His range of motion did not change after repetitive use. The Veteran reported flare-ups that caused pain, stiffness, and weakness, and that they prevented lifting and minimized walking, standing, and sitting. He had no localized tenderness, guarding, spasms, atrophy, or ankylosis. The Veteran suffered functional impact in lifting more than 50lbs, or 10lbs repeatedly; he also could not sit or stand for more than 60 minutes, and in an 8-hour day he could only stand 4 hours, sit 2 hours, and could lie down for 1 hour. See April 2014 Examination. He received another VA examination in December 2015. He reported flare-ups caused by increased activity that lasts for 1-2 days. His functional loss was described as difficulty in occasionally lifting 50lbs, walking is limited to one mile before resting, standing limited to 15 minutes at a time, and limited bending, twisting, pushing, and pulling. His forward flexion was 70 degrees, extension was 20, right lateral flexion 25, left lateral flexion 20, and lateral rotation was 30 degrees. Pain on movement was noted to cause functional loss. He displayed objective evidence of localized tenderness. Repetitive use testing did not reveal additional range of motion loss. The examiner found that the examination was consistent with the Veteran's description of repeated use over time and flare-ups; repeated use and flare-ups both caused pain, fatigue, weakness, lack of endurance, and incoordination. Muscle spasms and tenderness were found to cause an abnormal gait. The Veteran did not have ankylosis or muscle atrophy. However, he did display less movement than normal, weakened movement, disturbance of locomotion, and interference with sitting and standing. His muscle strength was normal on the left, but weaker on the right. See December 2015 Examination. The most recent examination in September 2021 shows the Veteran reported flare-ups that resulted in functional loss. See September 2021 Examination. The examiner noted the Veteran's reports of moderate severity, duration of 12-24 hours, frequency of every 2 months, and factors of numbness to burning sensation in the lower extremities, fatigue and weakness. The Veteran reported he experienced difficulty with lifting, walking, and squatting. The Veteran also noted impairments in lifting, squatting, and walking after repetitive testing. Range of motion for the lumbar spine after repetitive testing revealed has forward flexion to 30 degrees; extension 25 degrees; right and left lateral flexion to 25 degrees; right lateral rotation to 25 degrees; and left lateral rotation to 30 degrees. The Veteran had pain, fatigability, weakness, and lack of endurance but no additional function loss on repeated use over time or flare-ups. The Veteran had an abnormal gait, localized tenderness and guarding resulting in abnormal gait. The examiner noted additional contributing factors of disability of interference with standing and sitting, disturbance of locomotion, less movement than normal, and weakened movement. The examiner noted that passive range of motion of the thoracolumbar spine was not medically indicated due to potential injury, but that the Veteran did not have ankylosis of the spine, or intervertebral disc syndrome. The Veteran was noted to have difficulty with lifting, prolonged sitting, prolonged standing, and squatting. When a question arises as to which of two ratings under a code applies, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Reasonable doubt regarding degree of disability is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. Therefore, after resolving reasonable doubt in favor of the Veteran, his ROM findings and increased pain during flare-ups indicate that a 40 percent rating is warranted. There is no evidence of any ankylosis at any time during the claim period. The Veteran contends he manifests unfavorable ankylosis of the entire thoracolumbar spine because during flare-ups he loses 100 percent of his spinal movement. See October 2021 Brief. The Veteran contends that a 50 percent evaluation is warranted based on this functional loss. Chavis v. McDonough, 34 Vet. App. 1 (2021) (ankylosis in VA's General Rating Formula for Diseases and Injuries of the Spine can be met with evidence of the functional equivalent of ankylosis during a flare up). VA examinations and treatment records throughout the appellate period, show reports of flare-ups, including where the Veteran reports he is unable to leave bed. However, this disability level is contemplated by the assignment of a 40 percent evaluation where flexion is 30 degrees or less. In order to obtain an increased evaluation, the thoracolumbar spine must be fixed, or approximate fixation, to a degree that would indicate the higher evaluation was more appropriate than the lower. In this instance, the Veteran's spine has not been evaluated by medical personnel during the appellate period as ankylosed and the Veteran's contentions of a lack of flexion, to 30 degrees or less, does not rise to the severity of finding the lumbar vertebrae disability picture that approximates fixation. The Board also notes a lack of other indicia of fixation, such as lumbar spinal fusion. Unfavorable ankylosis is more than the mere inability to flex the spine. It is ankylosis resulting in difficulty walking due to a limited line of vision, restricted opening of the mouth and chewing, limited breathing due to restricted diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen, dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation, or neurological symptoms due to nerve root stretching. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). None of these additional indications of disability have been reported as present during the Veteran's flare-ups. As a result, the Board finds that the Veteran's flare-ups are not analogous to unfavorable ankylosis of the spine. Here, the Veteran's flexion has been limited to 30 percent or less and there are undoubtedly periods where he experiences increased pain and radiculopathy, and the Board does not dispute the Veteran's reports. See December 2016 VA Form 9. The Veteran's disability may also be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. Under the Formula for Rating IVDS, a 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 months. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Note (1) provides that for purposes of evaluating under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. The record does not reflect that the Veteran's IVDS has manifested by episodes that required bed rest prescribed by a physician and treatment by a physician for any 12-month period of the appeal. The Board concludes a rating in excess of 40 percent is not warranted on this basis. For the foregoing reasons, the preponderance of the evidence is against an initial rating greater than 40 percent for the Veteran's lumbar spine disability. The benefit of the doubt doctrine is therefore not for application. 38U.S.C. §5107(b); 38C.F.R. §4.3. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Trickey 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.