Citation Nr: 21074094 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 12-07 890 DATE: December 14, 2021 ORDER Entitlement to an evaluation greater than 10 percent prior to August 20, 2020, and an evaluation greater than 20 percent thereafter, for lumbar facet atrophy and sacroiliitis is denied. FINDINGS OF FACT 1. Prior to August 20, 2020, the Veteran's lumbar facet atrophy and sacroiliitis was not manifested by: intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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. 2. Since August 20, 2020, the Veteran's lumbar facet atrophy and sacroiliitis has not been manifest by: intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. CONCLUSION OF LAW The criteria for an evaluation greater than 10 percent prior to August 20, 2020, and an evaluation greater than 20 percent thereafter, for lumbar facet atrophy and sacroiliitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the United States Air Force from June 1998 to May 2006. This matter is on appeal from an April 2010 rating decision that granted service connection for lumbar facet atrophy and sacroiliitis and assigned a 10 percent disability rating effective May 12, 2006. The Veteran testified at a Board of Veterans' Appeals (Board) hearing in November 2012. A transcript of the proceeding is associated with the record. In November 2014, June 2017, January 2019, and March 2021, the Board remanded the appeal for additional evidentiary development. Entitlement to an evaluation greater than 10 percent prior to August 20, 2020, and an evaluation greater than 20 percent thereafter, for lumbar facet atrophy and sacroiliitis. The Veteran contends that she is entitled to a 40 percent disability rating for her service-connected disability. She testified that she has difficulty sitting for long periods of time and has to adjust every 30 minutes. She has difficulty sleeping and requires the use of a TENs unit. The Veteran's lumbar facet atrophy and sacroiliitis is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243, for intervertebral disc syndrome (IVDS). Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under 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. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS 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 for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is 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. Id. at Note 1. Under the General Rating Formula for Diseases and Injuries of the 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 warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for 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. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner 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." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the U.S. Court of Appeals for Veterans Claims (Court) held that 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. In November 2009, the Veteran underwent a private spine evaluation. The Veteran was diagnosed with left sacroiliitis and recurrent lumbar facet arthropathy. She had flexion to 80 degrees, extension to 20 degrees, and lateral bending and rotation were within the normal limits. An electrodiagnostic study was unremarkable for the lower extremities. In June 2010, the Veteran was afforded a VA spine examination. The Veteran endorsed decreased motion, stiffness, pain, and spasms in her back. She indicated that she experiences severe flare-ups twice per week that last up to six hours. During flare-ups, she lays down with a pillow between her legs. She reported one incapacitating episode of spine disease that lasted 2 days. The Veteran also described numbness and paresthesias. Upon examination, the Veteran's gait was normal and there was no curvature of the spine. Range of motion studies indicated the following: flexion to 80 degrees; extension to 30 degrees; left lateral flexion to 25 degrees; left lateral rotation to 35 degrees; right lateral flexion to 30 degrees; and, right lateral rotation to 45 degrees. The Veteran was employed full-time and lost less than a week of work due to her service-connected back disability. In November 2012, the Veteran testified that she had been prescribed bed rest for her back disability and had missed a couple of days of work. Pursuant to the Board's November 2014 remand, the Veteran was afforded another VA examination in April 2015. The VA examiner diagnosed degenerative arthritis of the spine, lumbar facet arthropathy, and sacroiliitis. The Veteran stated that she experienced flare-ups twice per week. She was unable to sit for longer than 20 minutes and stand for longer than 5 minutes. Initial range of motion studies showed forward flexion to 90 degrees, and extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation to 30 degrees. There was no pain on weight-bearing or palpation. The Veteran was able to complete repetitive use testing without additional loss of function or range of motion. The VA examiner was not able to estimate ranges of motion with repeated use over time and flare-ups. There was muscle spasm, but it did not result in abnormal gait or abnormal spinal contour. There was mild radiculopathy of the left sciatic nerve. The Veteran was employed full-time, but lost 10 days of work due to her back disability. The Veteran underwent another examination in July 2017. The VA examiner diagnosed degenerative arthritis of the spine and radiculopathy of the left and right sciatic nerve associated with lumbar facet arthropathy and sacroiliitis. The Veteran reported numbness and spasm with sharp, aching pain in the lower back. She denied fare-ups, but indicated she had functional loss or functional impairment with repeated use over time. She was unable to stand or sit for a long period of time and was no longer able to ride her bike. Initial range of motion studies showed flexion to 85 degrees, extension to 25 degrees, and right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation to 30 degrees. Pain was noted but did not result in functional loss. The Veteran was able to complete repetitive-use testing without additional loss of function or range of motion. The VA examiner was unable to estimate ranges of motion with repeated use over time or during flare-ups without resorting to speculation. There was no guarding or muscle spasm. The VA examiner diagnosed mild radiculopathy of the right lower extremity and moderate radiculopathy of the left. The Veteran did not have intervertebral disc syndrome. She used a brace occasionally. Her back disability did not impact her ability to work. In August 2017, K.B., a certified physician assistant, wrote that the Veteran experienced intermittent radicular symptoms and fibromyalgia. She experienced flare-ups that required accommodations in the workplace, including a more flexible schedule to allow her to rest. In August 2020, the Veteran underwent a VA back examination. The VA examiner diagnosed intervertebral disc syndrome. The Veteran endorsed flare-ups manifested by spasms while sitting, laying or standing that interfered with basic life functions. The pain was between a 7 and an 8 with a 10 being the most painful. The flare-ups lasted 1 to 2 minutes and occurred throughout the day. The Veteran was forced to employ a maid service, have her groceries delivered, and she depended on friends for help with her activities of daily living. Initial range of motion studies showed forward flexion to 60 degrees, extension to 20 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. Pain was noted with forward flexion and weight-bearing. She was able to conduct repetitive use testing without additional loss of function or range of motion. With repeated-use over time and during flare-ups, the VA examiner indicated that the Veteran's ranges of motion would not change. There was guarding and muscle spasm that resulted in abnormal gait or abnormal spinal contour. The Veteran had moderate radiculopathy of the bilateral lower extremities. The VA examiner diagnosed intervertebral disc syndrome that required at least 1 week but less than 2 weeks of prescribed bed rest over the past 12 months. The Veteran's back disability impacted her ability to concentrate at work and required time off. In September 2020, the Veteran's employer wrote that she had been provided a reasonable accomodation. She was allowed to work from home and had used 104.3 hours of sick leave due to her back disability since the beginning of her employment. Finally, in June 2021, the Veteran underwent her most recent VA back examination. The VA examiner diagnosed spinal stenosis, lumbar facet arthropathy, sacroiliitis with IVDS, and radiculopathy of the bilateral lower extremities. The Veteran reported flare-ups that were precipitated by walking and running for long periods. The flare-ups were mild and manifested by aching that lasted for 1 day once per week. She stated that she had difficulty with running, walking, and standing. Initial range of motion studies showed forward flexion to 90 degrees and extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation to 30 degrees. Passive range of motion studies were unable to be performed because of risk of injury. The Veteran was able to complete repetitive use testing. With repetitive use testing, the Veteran had forward flexion to 80 degrees and extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation to 25 degrees. With repeated use over time, the VA examiner estimated the following ranges of motion: 70 degrees of flexion, and extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation to 20 degrees. During flare-ups, the VA examiner estimated the following ranges of motion: 65 degrees of flexion, and extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation to 15 degrees. The Veteran did not have guarding or muscle spasm. She had not required any prescribed bed rest during the past 12 months. The Veteran's back disability impacted her ability to work due to difficulty lifting, carrying heavy objects, walking, and running. Prior to August 20, 2020, the preponderance of the evidence is against a rating in excess of 10 percent for lumbar facet atrophy and sacroiliitis under the General Rating Criteria. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, flare-ups and with repeated use over time. However, even considering the Veteran's lay reports, her symptoms would not result in limitation of motion more nearly approximating 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. Additionally, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Lastly, the Veteran did not have any incapacitating episodes having a total duration of 2 weeks but less than 4 weeks during the past 12 months. Since August 20, 2020, the preponderance of the evidence is also against a rating in excess of 20 percent for lumbar facet atrophy and sacroiliitis under the General Rating Criteria. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, flare-ups, and with repeated use over time. Even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Furthermore, since August 20, 2020, the Veteran has not had incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Regarding neurological impairment, the Veteran has already been granted service connection for radiculopathy of the bilateral lower extremities, and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for an evaluation greater than 10 percent prior to August 20, 2020, and an evaluation greater than 20 percent thereafter, for lumbar facet atrophy and sacroiliitis. In denying such ratings, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.R. Watkins, 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.