Citation Nr: 21073612 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 15-36 168 DATE: December 9, 2021 ORDER Entitlement to an increased disability evaluation for degenerative disc disease of the thoracolumbar spine, rated as 20 percent disabling for the rating period since February 6, 2018, is denied. FINDING OF FACT For the rating period since February 6, 2018, the Veteran's degenerative disc disease of the thoracolumbar spine is manifested by pain on motion, with functional loss due to pain upon movement. Forward flexion is limited to no worse than 50 degrees; there is no ankylosis; the Veteran does not have intervertebral disc syndrome. CONCLUSION OF LAW The criteria for a disability evaluation in excess of 20 percent for degenerative disc disease of the thoracolumbar spine for the rating period since February 6, 2018, have not been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235 5243 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from September 1970 to September 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, granted the Veteran an increased, 10 percent disability evaluation for degenerative disc disease of the thoracolumbar spine, effective November 10, 2014. During the pendency of the appeal, in a May 2020 Board decision, the Veteran was awarded an increased, 20 percent disability evaluation for his degenerative disc disease of the thoracolumbar spine, effective November 10, 2014, and remanded the Veteran's claim for an increased disability evaluation for the rating period since February 6, 2018. A July 2020 rating decision effectuated the Board's award of an increased disability evaluation for the rating period November 10, 2014 through February 6, 2018. Thus, the only period left on appeal is the rating assigned after February 6, 2018. As noted, in May 2020, the Board remanded the issue of the rating assigned for the Veteran's back from February 6, 2018, to the Agency of Original Jurisdiction (AOJ). A supplemental statement of the case was most recently issued in September 2021. The case has since been returned to the Board for appellate review. The Board finds that there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board ... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In addition, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. When evaluating musculoskeletal disabilities, VA must consider whether a higher evaluation is warranted, where the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. § § 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id.; Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (both citing to 38 C.F.R. § 4.40). Notably, during the appeal period, changes were made to 38 C.F.R. § 4.71a, Diagnostic Codes 5242 and 5243. Effective February 7, 2021, VA amended its regulations governing the schedule of rating musculoskeletal disabilities. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243). 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. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Lumbosacral and cervical spine disabilities are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine ("general rating formula"). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. Intervertebral disc syndrome (IVDS) is rated under the General Rating Formula for Rating Diseases and Injuries of the Spine or the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Formula for Rating IVDS Based on Incapacitating Episodes provides for ratings from 10 to 60 percent based on the frequency and duration of incapacitating episodes, defined in Note 1 as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The maximum 60 percent schedular rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the previous 12 months. The Board notes that effective February 7, 2021, the spine regulations were amended to state that Diagnostic Code 5243 governing intervertebral disc syndrome should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root, and that Diagnostic Code 5242 should apply to all other disc diagnoses. See 85 Fed. Reg. 76462 (Nov. 30, 2020) (effective 2/7/2021). As previously noted, the Veteran is rated for his degenerative disc disease of the thoracolumbar spine, pursuant to Diagnostic Code 5242 5237. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2020). In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined.. As the Veteran has not been diagnosed lumbosacral strain, the more appropriate rating criteria is found under Diagnostic Code 5242, and there is no need to include Diagnostic Code 5237 by means of a hyphenated diagnostic code. Because Diagnostic Code 5242 is degenerative arthritis under the version in effect prior to February 7, 2021 and disc disease other than intervertebral disc syndrome under the version in effect since February 7, 2021, an alternative diagnostic code is not appropriate. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). As such, the Board is amending the Diagnostic Code assigned for the Veteran's degenerative disc disease of the thoracolumbar spine to reflect that Diagnostic Code 5242 more accurately evaluates the Veteran's disability. See Butts v. Brown, 5 Vet. App. 532, 538 (1993); see also Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). As will be discussed below, this has no practical effect on the disability rating assigned. The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note 1 provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. As discussed above, ratings for bowel and bladder impairment are not on appeal. Note 2 provides that, for VA compensation purposes, 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 cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. Note 4 provides that range of motion measurements are to be rounded to the nearest five degrees. Note 5 defines unfavorable ankylosis 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note 6 provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. According to the general rating formula, a 20 percent evaluation is to be 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 evaluation is to be assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is to be assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is to be assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5235 for vertebral fracture or dislocation; 5236 for sacroiliac injury and weakness; 5237 for lumbosacral strain; Diagnostic Code 5238 for spinal stenosis; Diagnostic Code 5239 for spondylolisthesis or segmental instability; Diagnostic Code 5240 for ankylosing spondylitis; Diagnostic Code 5241 for spinal fusion; Diagnostic Code 5242 for degenerative arthritis of the spine; and Diagnostic Code 5243 for intervertebral disc syndrome. 1. Entitlement to an increased disability evaluation for degenerative disc disease of the thoracolumbar spine, rated as 20 percent disabling for the rating period since February 6, 2018. The Veteran is assigned a 20 percent disability rating for his degenerative disc disease of the thoracolumbar spine for the rating period since February 6, 2018 pursuant to the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5242 5237. The Veteran contends that he is entitled to a higher rating because his current disability evaluations do not property account for the severity of his symptoms. After a review of all the evidence, the Board finds that, for the rating period since February 6, 2018, the Veteran's disability picture more nearly approximates the criteria for the currently assigned 20 percent disability evaluation for his service-connected degenerative disc disease of the thoracolumbar spine. Factual Background At the February 2018 VA examination, the Veteran's range of motion was not measured; the Veteran was noted to have pain on motion in all planes of motion. There was evidence of muscle spasm and guarding resulting in abnormal gait or spinal contour, and tenderness to palpation, but there was no evidence of atrophy, decreased muscle strength, or ankylosis. The Veteran reported pain on motion and decreased range of motion that caused functional loss. The VA examiner found that the Veteran's functional loss due to flare-ups or repeated use included pain on motion. The VA examiner noted that the Veteran has intervertebral disc syndrome, and that the Veteran reported experiencing incapacitating episodes; the Veteran reported that he was placed on bed rest by a doctor 1 time for 30 days, the second time for 6 days, and a third time for 6 days, and that there were a couple of times he was put on bed rest for a couple of days. The VA examiner also noted that the Veteran uses multiple devices to aid with ambulation, but noted that the Veteran used a brace for his knees and required the use of a walker, crutches, and cane due to his right leg and hip. VA treatment records dated throughout the rating period on appeal reflect that the Veteran was treated for back pain. The Veteran's treatment records reflect that the Veteran treated his back pain with bed rest, but do not show that a physician prescribed bed rest as treatment for his degenerative disc disease of the thoracolumbar spine. At the February 2021 VA examination, the Veteran had flexion to 60 degrees, extension to 15 degrees, lateral flexion to 15 degrees bilaterally, and lateral rotation to 15 degrees bilaterally; he had pain on motion, but did not experience pain on weight-bearing or nonweight-bearing, and did not have tenderness to palpation. The VA examiner noted that decreased range of motion and pain on motion that caused functional loss; the VA examiner noted that an estimated loss of 5 degrees could be expected upon repetitive use and a loss of 10 degrees could be expected during flare-ups. The Veteran did not have guarding, spasm, or ankylosis. The VA examiner noted that the Veteran had difficulty with lifting and bending, and could not engage in prolonged walking or standing due to his thoracolumbar spine. The VA examiner noted that the Veteran reported using wheelchair or walker on occasion, but regularly used a cane to ambulate. Upon testing, muscle strength was full; there was no muscle atrophy. The VA examiner indicated that the Veteran had intervertebral disc syndrome, but did not experience incapacitating episodes requiring bed rest prescribed by a physician. At the most recent, June 2021 VA examination, the Veteran had 60 degrees, extension to 15 degrees, lateral flexion to 15 degrees bilaterally, and lateral rotation to 15 degrees bilaterally. The VA examiner noted that decreased range of motion and pain on motion that caused functional loss; the VA examiner noted that an estimated loss of 5 degrees could be expected upon repetitive use and a loss of 10 degrees could be expected during flare-ups. Functional loss caused limited walking, standing, lifting, and bending due to pain. The Veteran had functional loss due to pain, fatigability, weakness, and lack of endurance. There was no evidence of pain on weight-bearing and nonweight-bearing; there was also no evidence of tenderness to palpation. There was no guarding or atrophy, but the Veteran experienced muscle spasms resulting in abnormal gait or spinal contour. The Veteran did not have ankylosis or intervertebral disc syndrome, and the Veteran did not have incapacitating episodes requiring bed rest prescribed by a physician. Analysis The lay and medical evidence demonstrates that the Veteran's symptoms do not result in additional functional limitation to a degree that would support a rating in excess of a 20 percent disability evaluation for the period since February 6, 2018. The evidence shows that the Veteran experiences forward flexion of the thoracolumbar spine greater than 30 degrees which is required for a higher rating based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5242. Here, the lay evidence has been considered; however, that evidence when accepted as correct does not establish that he is functionally limited to 30 degrees or less forward flexion. Further, the evidence does not show favorable or unfavorable ankylosis of the entire thoracolumbar spine, or its equivalent due to functional loss. Additionally, the Veteran does not experience incontinence or bowel complaints as a result of his service-connected degenerative disc disease of the thoracolumbar spine. The Board has considered whether additional functional impairment due to factors such as pain, weakness and fatigability demonstrate additional limitation of motion or function to warrant a higher rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca at 206-07. The evidence shows no atrophy or decrease in strength. To the extent that the Veteran claims that his pain upon motion is the equivalent of limited motion, the Board finds that the Veteran's subjective complaints of pain have been contemplated in the current rating assignment, as the current rating is based on the objectively demonstrated reduced motion and impairment. The Board observes that the February 2018, February 2021, and June 2021 VA examiners indicated that the Veteran's functional loss was limited to decreased range of motion and pain on motion. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). See also Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). Moreover, the available medical findings do not show that painful motion, limitation of motion on repetitive use testing, or pain or limitation of motion on active motion/passive motion/in weight-bearing/non weight-bearing resulted in functional loss warranting the assignment of any higher evaluation for the lumbar spine during the entire appeal period. See Correia v. McDonald, 28 Vet. App. 158 (2016). Therefore, the lay and medical evidence demonstrates that the Veteran's symptoms do not result in additional functional limitation to a degree that would support a rating in excess of a 20 percent disability rating. With respect to a higher evaluation based on incapacitating episodes under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, as noted earlier, the Board acknowledges that the Veteran has intervertebral disc syndrome. However, the Veteran's VA examination reports reflect that the Veteran does not experience incapacitating episodes requiring physician prescribed best rest having a total duration of at least 4 weeks during a 12-month period as contemplated by a higher evaluation. The Board acknowledges that the Veteran has reported a history of physician ordered best rest. Nevertheless, a review of the Veteran's treatments record also do not reveal any periods of physician prescribed bed rest, and the February 2021 and June 2021 VA examiners concluded that the Veteran does not experience incapacitating episodes as defined by the rating criteria. With consideration of the provisions of Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, the Board notes that the Veteran is in receipt of separate disability evaluations for his right and left lower extremity neurological deficits. As such, the Board finds that the evidence of record reveals manifestations consistent with the currently assigned 20 percent evaluation for the entire rating period on appeal for degenerative disc disease of the thoracolumbar spine. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Brokowsky, 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.