Citation Nr: 21074773
Decision Date: 12/16/21	Archive Date: 12/16/21

DOCKET NO. 12-31 472A
DATE: December 16, 2021

ORDER

Entitlement to an initial disability rating in excess of 10 percent prior to March 10, 2017 for degenerative arthritis of the lumbar spine with stenosis is denied.

Entitlement to a disability rating in excess of 20 percent from March 10, 2017 to May 10, 2021 for degenerative arthritis of the lumbar spine with stenosis is denied.

Entitlement to a disability rating in excess of 40 percent from May 10, 2021 for degenerative arthritis of the lumbar spine with stenosis is denied.

REFERRED

The issues of entitlement to service connection for hypertension, high cholesterol and diabetes, secondary to a service-connected disease or injury were raised in a July 2011 statement and are referred to the Agency of Original Jurisdiction (AOJ) for adjudication.

The issues of entitlement to higher ratings for right and left lower extremity radiculopathy were raised in the November 2021 informal hearing presentation and are referred to the Agency of Original Jurisdiction (AOJ) for adjudication.

FINDINGS OF FACT

1. Prior to March 10, 2017, the Veteran's degenerative arthritis of the lumbar spine with stenosis was not manifested by forward flexion of the thoracolumbar spine to 60 degrees of forward flexion or less, combined motion to 120 degrees or less, 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. From March 10, 2017 to May 10, 2021, the Veteran's degenerative arthritis of the lumbar spine with stenosis ot manifested by forward flexion of the thoracolumbar spine to 30 degrees or less or ankylosis of the entire thoracolumbar spine.

3. From May 10, 2021, the Veteran's degenerative arthritis of the lumbar spine with stenosis has been manifested by pain, painful motion with forward flexion of the thoracolumbar spine to 20 degrees or greater, with no favorable ankylosis of the entire thoracolumbar spine

CONCLUSIONS OF LAW

1. The criteria for an initial rating in excess of 10 percent prior to March 10, 2017 for degenerative arthritis of the lumbar spine with stenosis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5238, 5242.

2. The criteria for a rating in excess of 20 percent from March 10, 2017 to May 10, 2021, for degenerative arthritis of the lumbar spine with stenosis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242.

3. The criteria for a rating in excess of 40 percent from May 10, 2021 for degenerative arthritis of the lumbar spine with stenosis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from April 1981 to May 1984 in the United States Army.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In September 2017, the Board denied the appeal.  The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2019 Memorandum Decision, the Court vacated the September 2017 Board decision and remanded the matter to the Board for development. The Board's decision was vacated due to the Board's failure to consider favorable evidence, namely, private medical records from Physiotherapy Associates, as well as its reliance on a March 2017 VA examination report, which the Court found inadequacies.

The Board most recently remanded these issues to the RO for additional development in April 2021. There has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999).

The Veteran's representative objected to the ratings assigned to the Veteran's right and left lower extremity radiculopathy. However, it does not appear that either of these issues has been addressed by the AOJ. Therefore, the Board does not have jurisdiction over these issues, and as stated above, they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2019).

Increased Ratings

Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155.  Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion.  

The Veteran's entire history is reviewed when making a disability determination.  See 38 C.F.R. § 4.1. VA must consider whether the Veteran is entitled to "staged" ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal.

The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

If there is a question as to which evaluation to apply to the Veteran's disability, 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 general, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that 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 the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the Veteran undertaking the motion. See 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. See 38 C.F.R. § 4.45.

The Veteran contends that she is entitled to higher disability evaluations for her back disability. The Veteran's degenerative arthritis of the lumbar spine with stenosis has been rating as 10 percent disabling prior to March 10, 2017 under 38 C.F.R. § 4.71a Diagnostic Code 5238. During the course of the appeal, in a March 2017 rating decision the Veteran's back disability was granted an increased 20 percent rating effective March 10, 2017 under 38 C.F.R. § 4.71a Diagnostic Code 5242. Then, an August 2021 rating decision granted an increased 40 percent rating effective May 10, 2021. The respective periods will be discussed in greater detail below. 

Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Formula) (for DCs 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). 

Spinal stenosis and degenerative arthritis of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine. With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, the Formula provides for ratings as follows. 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 body 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 combined range of motion of the thoracolumbar spine greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal contour such as scoliosis. A 40 percent rating is warranted when there is forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. Associated objective neurologic abnormalities are evaluated separately. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5237, 5242, Note 1.

Note 1 to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note 2 states that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. 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.

Intervertebral disc syndrome permits evaluation under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5242, 5243.

Diagnostic Code 5243 provides for rating intervertebral disc syndrome (IVDS) 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 evaluation when all disabilities are combined under 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Formula for Rating IVDS based on Incapacitating Episodes provides ratings for incapacitating episodes as follows: having a total duration of at least 6 weeks during the past 12 months (60 percent); having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40 percent); having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months (20 percent); and having a total duration of at least one week but less than 2 weeks during the past 12 months (10 percent). 38 C.F.R. § 4.71a.

Note 1 states that 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.

Note 2 indicates that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, the rater is to evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment.

Effective February 7, 2021, 38 C.F.R. § 4.71a was revised, including Diagnostic Code 5242, which was revised from "degenerative arthritis of the spine" to "degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome."

1. Entitlement to an initial disability rating in excess of 10 percent prior to March 10, 2017 for degenerative arthritis of the lumbar spine with stenosis

The Veteran submitted a claim for entitlement to service connection for a low back disability in March 2009.

October 2009, November 2009, and December 2009 private treatment records reflect that the Veteran exhibited "good range of motion and normal muscle tone and strength" in her spine. 

June 2010 employment records reflect that the Veteran was supplied with a high back chair.

The Veteran attended a VA examination in August 2010. She walked with a normal gait but reported pain with motion. She reported flare-ups every one to two months, each lasting for five to ten minutes. Range of motion testing revealed flexion to 0 to 90 degrees, extension to 0 to 30 degrees, right and left lateral rotation 0 to 45 degrees, and right and left lateral flexion 0 to 30 degrees. There was no objective evidence of pain on motion and no additional limitation in motion after three repetitions. She reported missing two days of work in the last 12 months due to her back condition. 

In the July 2011 notice of disagreement, the Veteran reported excruciating back pain that interfered with her quality of life. She reported time limitations in sitting and standing and difficulty exercising.

March 2012 private treatment records reflect that the Veteran's lumbar extension pain was relieved by performing lumbar flexion and touching her fingers to her shins.  Physical therapy records the same month and in April showed limitations in extended sitting at her full time job and pain at a level of 3/10.  Range of motion was 20 degrees flexion, 10 degrees extension, 15 degrees left and 5 degrees right lateral flexion. An April pain management record note that the Veteran had undergone radiofrequency facet denervation and acupuncture in the past. 

May 2012 private treatment records reflect that the Veteran had "full painless range of motion of the lumbar spine." 

July 2012 private treatment records reflect that the Veteran exhibited full active range of motion. 

In her November 2012 VA form-9, the Veteran stated that her range of motion had only improved due to injections, acupuncture, and physical therapy. 

November 2013 private treatment records reflect that the Veteran exhibited normal range of motion and walked with a normal gait. She denied any limb or joint pain with range of motion and had full muscle strength. 

January 2014 private treatment records reflect that the Veteran exhibited normal range of motion without pain.

July 2015 private treatment records reflect that the Veteran exhibited normal range of motion. She reported walking and spinning three to four times weekly for exercise.

June 2016 private treatment records reflect that the Veteran walked with a normal gait and coordination. 

January 2017 private treatment records reflect that the Veteran exhibited normal range of motion.

Upon review of the evidence of record, including contemporaneous VA and private treatment records, the Board has determined that an evaluation in excess of 10 percent is not warranted during this time period.  A review of the medical and lay evidence indicates that the Veteran's back disability most closely approximated a 10 percent evaluation during this period.  An evaluation in excess of 10 percent is not warranted during this period as the most probative evidence does not show functional limitation resulting in flexion of 60 degrees or less, combined range of motion of 120 degrees or less, muscle spasm or guarding resulting in abnormal gait or spinal contour, incapacitating episodes or ankylosis.  Rather, the evidence establishes that flexion is better than 60 degrees and the combined range of motion is better than 120 degrees. The Board considered the measurements obtained by the physical therapist in March and April 2012, but they are substantial outliers from the rest of the record before and after this period of therapy. 

To the extent that the Veteran experienced pain during range of motion testing, was limited by pain, or there is functional loss during flare-ups, the Board has considered DeLuca and Sharp.  The evidence is consistent with forward flexion greater than 60 degrees and combined thoracolumbar motion greater than 120 degrees.  In order to warrant a higher evaluation, there must be the functional equivalent of limitation of flexion to 60 degrees or less or combined thoracolumbar motion 120 degrees or less.  38 C.F.R. §§ 4.40, 4.45. The Board acknowledges the Veteran's irregular complaints of pain and painful motion.  The Board has also considered the functional impairment of the Veteran's reported flare-ups.  Even when considering functional loss due to pain and flare-ups, flexion is consistently greater than 60 degrees and combined motion is above 120 degrees and on some occasions were noted as full range and painless.  

Private treatment records reflect that the Veteran exhibited normal range of motion and exercised regularly during this period on appeal. The Board finds the private treatment records to be highly probative. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). 

The Board has not overlooked the statements by the Veteran with regard to the severity of her disability during this period.  The Veteran is competent to report on factual matters of which she had firsthand knowledge, e.g., experiencing pain. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  However, in this instance, the objective medical evidence is simply more probative as it is more consistent and based on clinical observation. The claim must be denied.

2. Entitlement to a disability rating in excess of 20 percent from March 10, 2017 to May 10, 2021 for degenerative arthritis of the lumbar spine with stenosis

The Veteran attended a VA examination in March 2017. She reported pain and stiffness and seeing a pain management specialist. She stated that it was difficult to stand, run, and jump due to back pain and she used a recliner with lumbar support. She reported regularly using a back brace, a special chair at work and required breaks at work. Range of motion testing revealed flexion to 60 degrees, extension to 20 degrees, and right and left lateral flexion and right and left lateral rotation, each to 20 degrees. Observed repetitive use testing did not further limit range of motion. The examiner stated that the Veteran had less range of motion due to pain. The examiner was unable to estimate range of motion during flare-ups or following repeated use without resorting to mere speculation because "there is no conceptual or empirical basis for making such a determination without directly observing function" in those conditions.  Moreover, the Veteran did not provide any further descriptions of her limitations during flare-ups from which an examiner could provide a speculative estimate.  There was no evidence of guarding or muscle spasm, and no sign of muscle atrophy. There was no evidence of IVDS.  The examiner stated that the Veteran lost less than one week of work in the last year due to her back pain. She continued to work full time as a program analyst. 

April 2017 private treatment records reflect that the Veteran denied any pain with lumbar flexion and had "mild pain" with extension and left lateral bending. She reported difficulty standing for long periods of time.

July 2017 private treatment records reflect that the Veteran walked with a normal gait and coordination. She had full range of motion in her spine with pain on extension.

August 2017 private treatment records reflect that the Veteran denied experiencing any pain during her visit but that she usually had lower back pain. She exhibited normal range of motion, walked with a normal gait, and had full muscle strength.

September 2017 private treatment records reflect that the Veteran walked with a normal gait and coordination. 

January 2018 private treatment records reflect that the Veteran exhibited normal range of motion.

June 2018 private treatment records reflect that the Veteran exhibited normal range of motion, walked with a normal gait, and had full muscle strength.

November 2018 private treatment records reflect that the Veteran had "good functional range of motion and normal muscle tone and strength" in her spine. There was no evidence of tenderness or instability.

January 2019 private treatment records reflect that the Veteran exhibited normal range of motion.

May 2019 private treatment records reflect that the Veteran had "good functional range of motion and normal muscle tone and strength" in her spine. There was no evidence of tenderness or instability. 

June 2019 private treatment records reflect that the Veteran had normal toe to heel walking. She reported "minimal pain" with lumbar extension and even less pain with lumbar flexion.  

July 2019 and June 2020 private treatment records reveal that the Veteran walked and used the elliptical for exercise two times weekly.

Upon VA examination in October 2020, the Veteran reported daily chronic pain that limited her ability to stand, sit, or walk. She reported monthly flare-ups that lasted for two days and prevented her from getting out of a chair. The Veteran reported occasionally using a compression garment. The Veteran stated that she was unable to perform housework and was unable to walk. Range of motion testing revealed forward flexion to 75 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 25 degrees. Pain was noted with motion. Repetitive use testing did not result in any additional functional loss. Following repeated use and during a flare-up, the examiner estimated that the Veteran's forward flexion would be limited to 60 degrees, extension to 15 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 20 degrees. There was no evidence of guarding, muscle spasms, or muscle atrophy. The Veteran did not have IVDS. The examiner stated that the Veteran's back disability would cause her to miss less than a week of work annually and cause pain with prolonged sitting and standing. 

In November 2020 correspondence, the Veteran objected to the findings of all of the VA examinations because the examiners did not specialize in orthopedics and did not use a goniometer. She argued that her private treatment records should be more probative. She also stated that she experienced flare-ups several times a month. The Veteran stated that from 2012 to March 2017 she was able to "endure the pain more" because she performed physical therapy exercises at home and took pain medication. 

In November 2020, the Veteran submitted a work document reflecting sick leave taken between 2018 and 2020. In a corresponding statement, she explained that she had missed more work due to her back than the October 2020 VA examination report determined.

During December 2020 private treatment, the Veteran reported experiencing pain at a 2 out of 10 on the pain scale. She reported back pain with lumbar extension only.  She had a normal, stable gait. 

March 2021 private treatment reflects that the Veteran reported chronic back pain, "mild in severity," with symptoms coming and going. At the time of her treatment, she reported her pain as a 1 out of 10. 

During March 2021 private treatment the Veteran reported that she was able to alleviate pain symptoms by bending forward while sitting. She reported being independent in her activities of daily living. She had 50 percent use of active flexion in her spine, and 10 percent use of her extension.

During April 2021 private treatment, the Veteran reported that she experienced "a lot of relief" following a March 2021 lumbar facet joint denervation. She stated that she no longer experienced severe pain episodes, had less stiffness, and had less pain with physical exercise. She also stated she no longer used assistive devices when on her feet.

Upon review, the Board finds that from March 10, 2017 to May 10, 2021, the criteria for a rating in excess of 20 percent have not been met.

In the February 2019 Memorandum Decision, the Court found that the Board erred by placing weight on the March 2017 VA examination because it was not clear whether the examiner was simply noting the Veteran's report of difficulty standing, running, and jumping due to back pain and she used a recliner with lumbar support, a back brace, a special chair at work and required breaks at work or whether the examiner agreed to these limitations as a clinical finding.  This lack of clarity stimulated additional examinations.  The Board will accept the Veteran's reports as credible representations of her limitations and will only consider the other clinical measurements made during the examination. 

As noted, a 40 percent rating under DC 5242 and the General Formula is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  The evidence of record during the relevant period did not show that the Veteran's disability picture more nearly approximated these criteria.  With respect to forward flexion, during this period her forward flexion was limited to 60 degrees at worst, which is greater than 30 degrees and thus did not meet the criteria for the next higher rating under DC 5242.  

As explained above, the Board finds the private treatment to be highly probative. Furthermore, in her November 2020 letter, the Veteran urges adjudicators to consider the evidence from the private rehabilitation care. The Board emphasizes that the March 2021 treatment records from that referenced provider reveal that the Veteran had 50 percent function in her flexion. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees. The Board therefore interprets the Veteran's forward flexion as 45 degrees during the March 2021 private treatment. 

The Board has also considered the Veteran's sick leave report from her employer. Unfortunately, the Board notes that her medical records reflect cancer treatment and surgeries, bilateral knee surgeries and a total knee replacement, and carpal tunnel surgery, as well as numerous other medical conditions all during the period in question. The sick leave report provided does not specify which days the Veteran took off of work due to her back disability alone. Accordingly, the report is of limited probative value. 

While the Veteran received regular treatment for chronic back pain during this period, private treatment records reflect that she often reported minimal pain and exhibited normal range of motion. She continued to regularly exercise and walked with a normal gait. She even reported that bending forward help to alleviate her pain.

In sum, the Board finds an increased rating in excess of 20 percent is not warranted under DC 5242 and the General Formula.

3. Entitlement to a disability rating in excess of 40 percent from May 10, 2021 for degenerative arthritis of the lumbar spine with stenosis

Upon VA examination in May 2021, the Veteran reported that her back condition had worsened, and that she experienced low back pain with weight-bearing. She stated she was unable to stand, walk, or sit for prolonged periods.  She reported monthly flare-ups that lasted one to two days and limited her ability to perform most activities. The Veteran reported occasionally using a cane, and regularly using a brace. The Veteran stated that she was unable to perform housework and was unable to walk. Range of motion testing revealed forward flexion to 30 degrees, extension to 15 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 25 degrees. Pain was noted with motion. She would not perform repetitive use testing for fear of pain. Following repeated use, the examiner estimated that the Veteran's forward flexion would be limited to 20 degrees, extension to 10 degrees, right and left lateral flexion and right and left lateral rotation to 10 degrees. During a flare-up, the examiner estimated that the Veteran's forward flexion would be limited to 10 degrees, extension to 5 degrees, right and left lateral flexion and right and left lateral rotation to 5 degrees. There was no evidence of guarding, muscle spasms, or muscle atrophy. The Veteran did not have IVDS or ankylosis. The examiner stated that the Veteran's back disability would cause her to miss less than a week of work annually and cause pain with prolonged sitting and standing.

As noted above, to receive a disability rating higher than 40 percent for her back disability, there would need to be a showing of unfavorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes having a total duration of at least six weeks during the past 12 months.  Such is not shown in the evidence of record. 

The Board acknowledges the Veteran's reports of debilitating pain and perceptions of functional limitations.  However, the Board emphasizes that a lay person lacks the expert training and professional experience to provide clinically informed and objective medical findings as to the severity of her back disability.  See Jandreau, supra.

The Board is mindful of the Veteran's assertions as to pain and that, as required by 38 C.F.R. § 4.59, joints should be tested for pain on both active and passive motion, in weight bearing and non-weight bearing, and if possible, with the range of opposite undamaged joint.  Correia v. MacDonald, 28 Vet. App. 158 (2016).  Here, the Veteran is in receipt of the maximum evaluation for limitation of motion under the applicable Diagnostic Code.  However, pursuant to Sharp and DeLuca, the Board has considered whether there is unfavorable ankylosis of the entire thoracolumbar spine or the functional equivalent of unfavorable ankylosis of the entire thoracolumbar spine.  A review of the record clearly indicates that there is not. The Board finds the May 2021 VA examination report to be highly probative in this regard. The examiner determined that even during a flare-up, the Veteran would have some motion in her spine.

There is no evidence of actual ankylosis of any portion of the spine, and certainly not of unfavorable ankylosis of the entire thoracolumbar spine.  Objective testing at the VA examination during the appeal period indicates that the Veteran has range of motion of the thoracolumbar spine and that there is no ankylosis.  

When considering if there is the functional equivalent of unfavorable ankylosis of the entire thoracolumbar spine, to include during flare-ups, the Board has considered Note 5 of the General Rating Formula.  Even during the peak of her reported flare-ups, there is no evidence of functional impairment consistent with unfavorable ankylosis as defined by regulation  resulting in the entire spine fixed in flexion or extension, and 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.  

So, even during the height of a flare-up, there is not functional impairment consistent with unfavorable ankylosis.  There is certainly no evidence of functional impairment consistent with unfavorable ankylosis of the entire thoracolumbar spine during periods of no flare-ups or after repeated use.  

The Veteran has significant impairment due to her service-connected back disorder.  However, this is accounted for by the current 40 percent rating, which adequately represents any functional impairment attributable to the disability during this period.  See 38 C.F.R. §§ 4.41, 4.10.  The preponderance of the evidence is against a rating in excess of 40 percent.

Note 1 of the General Rating Formula for Diseases and Injuries of the Spine also provides for evaluating any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate Diagnostic Code.  In this case, the Veteran is service connected for lower extremity radiculopathy. No additional neurological abnormalities associated with the Veteran's back have been raised. 

(continued next page)

As there is otherwise no clinical evidence demonstrating entitlement to a rating in excess of 40 percent at any time during the period on appeal, a rating in excess of 40 percent is denied. 38 C.F.R. §§ 3.400, 4.71(a), Diagnostic Code 5242.  

 

 

J.W. FRANCIS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Fitzgerald, 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.