Citation Nr: 21073193 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 16-49 338 DATE: December 7, 2021 ORDER Entitlement to a 20 percent disability evaluation prior to January 14, 2020 for degenerative arthritis of the lumbar spine with spinal stenosis is granted. Entitlement to a disability evaluation in excess of 40 percent from January 14, 2020 for degenerative arthritis of the lumbar spine with spinal stenosis is denied. FINDINGS OF FACT 1. From June 6, 2014 to January 14, 2020, with consideration of functional loss due to pain, the Veteran's low back disability (service connected as degenerative arthritis of the lumbar spine with spinal stenosis) was manifested by forward flexion of the thoracolumbar spine that was limited to greater than 30 degrees but not greater than 60 degrees. 2. From January 14, 2020 onwards, the evidence does not show that the Veteran's low back disability manifested by ankylosis; nor has he experienced incapacitating episodes. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 20 percent disability evaluation for degenerative arthritis of the lumbar spine with spinal stenosis, from June 6, 2014 to January 14, 2020 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242. 2. The criteria for entitlement to a disability evaluation in excess of 40 percent for degenerative arthritis of the lumbar spine with spinal stenosis, from January 14, 2020 have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.71a, DC 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from May 1976 to July 1996. For the Veteran's meritorious service, he was awarded the Combat Action Ribbon, among other decorations. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in September 2019, as well as a virtual Board hearing in August 2021. Transcripts of both hearings have been associated with the claims file. As an initial matter, the Board notes that the Veteran's claims were previously before the Board in December 2019, at which time they were remanded to the Agency of Original Jurisdiction (AOJ) for further evidentiary development. Additionally, the Board acknowledges that the Veteran filed a VA 10182: Notice of Disagreement (NOD) in November 2020 expressing disagreement with the effective date assigned for the increased disability rating of the Veteran's lumbar spine disability in the May 2020 rating decision mentioned above. The Veteran attempted to appeal this claim into the Appeals Modernization Act (AMA) system. However, as, the 10182 was not received within 60 days of a statement of the case, and further as the May 2020 rating decision was not an original decision, but rather, a decision promulgated during the course of the legacy appeal which had been remanded, the opt in was unsuccessful. The Board notified the Veteran that the issue was unable to be opted into the AMA system. That said, the Board has jurisdiction in the legacy system of the Veteran's increased rating claim from his June 2014 claim through the present, to include whether higher ratings are warranted at any time during that period. Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the 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 appellant working or seeking work. 38 C.F.R. § 4.2. 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. Back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes. 38 C.F.R. § 4.71a. During the appeal period, changes were made to certain Diagnostic Codes under 38 C.F.R. § 4.71a. Effective February 7, 2021, VA amended its regulations governing spine disabilities. VA's intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. However, the criteria for the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes and the General Rating Formula for Diseases and Injuries of the Spine were not changed. Diagnostic Code 5244 regarding complete traumatic paralysis was added. However, as the Veteran's claims file does not show complete traumatic paralysis, this Diagnostic Code is not applicable and will not be discussed further. In addition, the prescription of bed rest is a foundational requirement of a rating under a Formula for Rating IVDS Based on Incapacitating Episodes, 38 C.F.R. § 4.71a, Diagnostic Code 5243. Here, there is no evidence demonstrating that bed rest was prescribed by a physician to treat the Veteran's lumbar spine disability and he has not presented any evidence to the contrary. Thus, the absence of any prescribed bed rest precludes a rating from being assigned under it, and it is therefore more beneficial to evaluate the Veteran's lumbar spine disability based on limitation of motion under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees, the combined range of motion of the thoracolumbar spine is 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. A 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is 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 evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is 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. Ankylosis is defined, for VA compensation purposes, as a condition in which all or part of the spine is fixed in flexion or extension. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (5). The Court recently held that the Board could consider assigning a rating based on ankylosis where there is functional immobility during flare-ups, even though there is no clinical assessment of ankylosis in the record. That is, evidence of the functional equivalent of ankylosis during flare-ups, pursuant to 38 C.F.R. § 4.40 and 4.45, colloquially known as the DeLuca factors, can satisfy the criteria for a rating based on ankylosis. See Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660 (Apr. 16, 2021). Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Note (2), see also Plate V. 1. Entitlement to a 20 percent disability evaluation prior to January 14, 2020 for degenerative arthritis of the lumbar spine with spinal stenosis is granted. By way of history, the Veteran filed a claim for increased rating in June 2014 which was denied by the January 2015 rating decision mentioned above. The Veteran's 10 percent disability rating for degenerative arthritis of the lumbar spine with spinal stenosis was continued. The Veteran filed a notice of disagreement (NOD) in August 2015 and appealed the claim to the Board. It has been in appellate status since that time. The Veteran maintains that a rating in excess of 10 percent is warranted for his low back disability. The Veteran's low back disability is evaluated under Diagnostic Code 5242. 38 C.F.R. § 4.71a. Evidence relevant to this period on appeal includes private treatment records, a VA examination, and VA treatment records. The Veteran also submitted several lay statements from family members and friends in support of his claim. Private treatment records from August 2014 reflect that the Veteran sought treatment for sciatica. The Veteran reported that his low back pain was "burning and aching" radiating down from the buttock to the left foot. The Veteran indicated that the pain was moderately severe at times and became worse with twisting. VA records include a consult note with a physical therapy physician in July 2014, which notes the Veteran's complaints of pain in his leg; however, there was no clinical evidence of radiculopathy. The Veteran underwent a VA examination in January 2015. The VA examiner diagnosed the Veteran's lumbar condition as a lumbosacral strain. The Veteran reported that he experienced "progressive worsening" of his back condition since his last VA examination in 2010. The Veteran indicated he manages his low back disability through physical therapy, a TENs unit, and pain medication. The Veteran endorsed constant pain in his lower back that radiates down his left leg, with some tingling and numbness in his left lower extremity. The Veteran reported flare-ups of his disability, indicating that he often has to sit in his recliner and keep his left leg elevated when they occur. The Veteran stated he is limited with prolonged walking, standing, and lifting due to his low back disability. Objective range of motion (ROM) testing reflect that the Veteran's range of motion for his lumbar spine was abnormal. Findings are reported as 40 degrees forward flexion, 20 degrees extension, 20 degrees right lateral flexion, 20 degrees left lateral flexion, 20 degrees right lateral rotation, and 20 degree left lateral rotation. The VA examiner noted that "personal effort as ROM testing is incongruous with objective findings." Pain was noted on forward flexion but did not result in functional loss. The examiner noted that the Veteran was able to perform repetitive use testing with any functional loss. The VA examiner indicated that the Veteran had no muscle spasms or guarding of the thoracolumbar spine. No objective evidence of radiculopathy or other neurologic abnormalities were found. Specifically, straight leg raise testing was negative in both lower extremities. Muscle strength, reflex, and sensory testing were all normal. The Veteran was not diagnosed with IVDS. Lastly, the Veteran exhibited no signs of ankylosis. VA treatment records for the period on appeal indicate that the Veteran continued to complain of pain and limited motion as a result of his lumbar spine disability. See e.g., October 23, 2015 VA primary care note (where the Veteran reports using his TENs unit and Tramadol for his back pain daily); July 28, 2014 rehabilitation consultation (where the Veteran reports obtaining chiropractic treatment as well as physical therapy without much relief in symptoms). These records do not document objective evidence of radiculopathy. Here, based on the evidence summarized above, for the period from June 6, 2014 to January 14, 2020, the Board finds that an evaluation of 20 percent is warranted for the Veteran's lumbar spine disability. The Veteran's lumbar spine disability more nearly approximated forward flexion of greater than 30 degrees but no greater than 60 degrees. In addition, the Board cannot ignore the fact that the condition frequently results in painful motion. Based on the foregoing, and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's lumbar spine disability warrants a 20 percent disability rating during the period on appeal. The Board finds that a disability rating of 40 percent is not warranted during the appellate period because the evidence of record does not demonstrate that his lumbar spine disability is manifested by a limitation of motion of forward flexion of 30 degrees or less. The evidence is also negative for favorable ankylosis of his thoracolumbar spine. 2. Entitlement to a disability evaluation in excess of 40 percent from January 14, 2020 for degenerative arthritis of the lumbar spine with spinal stenosis is denied. During the pendency of this appeal, the RO issued a rating decision in May 2020 which increased the Veteran's lumbar spine disability rating to 40 percent, effective January 14, 2020. As a higher rating for the Veteran's lumbar spine disability is available for the period prior from January 14, 2020, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim is still considered to be on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Evidence relevant to the period on appeal from January 14, 2020 includes a VA examination of that date, as well as VA treatment records. The Veteran underwent a VA examination on January 14, 2020. The VA examiner diagnosed the Veteran's lumbar condition as a lumbosacral strain, degenerative arthritis of the spine, and spinal stenosis. The Veteran reported that he currently experiences pain in his lower back including times when his "back will go out" leading to the pain that radiates down his left side and sometimes right side. The Veteran reported flare-ups of his disability, indicating that his back will go out when his sciatic nerve "activates," and he has to lay down due to increased pain. Further, the Veteran stated during flare-ups, he is unable to move his left leg and has to go to the doctor and get steroid shots. The Veteran stated due to his back condition, he is unable to walk for long periods of time or stand for long periods of time, unable to run and walks with a limp, unable to bend over to pick items off the floor, and has difficulty getting in and out of the car. Objective ROM testing reflect that the Veteran's range of motion for his lumbar spine was abnormal. Findings are reported as 35 degrees forward flexion, 10 degrees extension, 20 degrees right lateral flexion, 20 degrees left lateral flexion, 20 degrees right lateral rotation, and 20 degree left lateral rotation. The VA examiner noted that the Veteran walks with a limp. Pain was noted on examination and caused functional loss. The examiner noted that the Veteran was able to perform repetitive use testing, however, there was additional loss of range of motion following repetitions. The Veteran's ROM testing following three repetitions resulted in 25 degrees forward flexion, 5 degrees extension, and 20 degrees right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation. The same range of motion findings were estimated for the limitation of the Veteran's movement during an instance of a flare-up. The VA examiner indicated that the Veteran had muscle spasms and guarding of the thoracolumbar spine resulting in abnormal gait or abnormal spine contour. The VA examiner also noted that the Veteran exhibited signs and symptoms of radiculopathy in the bilateral lower extremities. The Veteran was also found to have other neurologic abnormalities, including urinary leakage four to five times per day, requiring him to wear absorbent pads in his underwear. The Veteran was not diagnosed with IVDS. Lastly, the Veteran exhibited no signs of ankylosis. VA treatment records from this period on appeal reflect continued complaints by the Veteran of back pain, specifically, in the low back radiating down to the left side of his body, with objective evidence of radiculopathy. The Board acknowledges the Veteran's sincere belief that a higher rating is warranted for his low back disability. He is competent to report symptoms he experiences related to his low back and such has been documented within his VA treatment records and examination reports. Although he has reported that he experiences significant low back pain, and the Board does not dispute this, he himself has not contended that he has ankylosis. Collectively, the medical findings demonstrate that the Veteran's lumbar spine is not fixed, and there is no diagnosis of ankylosis of the thoracolumbar spine or the entire spine. Therefore, a rating higher than 40 percent rating under the General Rating Formula is not warranted. As the evidence does not indicate that the Veteran has unfavorable ankylosis of the entire thoracolumbar spine at any time during the course of this appeal, entitlement to a rating higher than 40 percent from January 14, 2020 is not warranted. The Board has carefully considered the Veteran's contentions, including regarding flare-ups, and notes that the 40 percent rating is recognition that the Veteran has a severe low back disability as it is the maximum rating for limitation of motion under the schedular criteria. Further, no additional separate ratings are warranted as there is no evidence of any associated neurological abnormalities or impairments, other than the radiculopathy already separately rated and the bowel incontinence which is also separately rated. For all these reasons, the Board finds that a rating higher than 40 percent from January 14, 2020 for the Veteran's low back disability is not warranted. As the preponderance of the evidence reflects the symptoms of the Veteran's lumbar spine disability do not more nearly approximate the criteria for a rating higher than 40 percent, the benefit of the doubt doctrine is not for application. Thus, the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 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.