Citation Nr: 21075122
Decision Date: 12/17/21	Archive Date: 12/17/21

DOCKET NO. 18-09 508
DATE: December 17, 2021

ORDER

Entitlement to a rating in excess of 20 percent prior to July 26, 2019 for degenerative arthritis with spinal stenosis and intervertebral disc syndrome (IVDS) is denied.

FINDING OF FACT

Prior to July 26, 2019, the Veteran's degenerative arthritis with spinal stenosis and IVDS has been manifested by complaints of pain, and painful motion with forward flexion of the thoracolumbar spine to 60 degrees with incapacitating episodes of at least 1 week but less than 4 weeks during the past 12 months.

CONCLUSION OF LAW

Prior to July 26, 2019, the criteria for an evaluation in excess of 20 percent for degenerative arthritis with spinal stenosis and IVDS have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.59, 4.7, 4.71a, Diagnostic Code 5243 (2019).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the U.S. Army from June 1988 to January 1992.

The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in July 2020. A transcript of that hearing is of record.

The appeal was last before the Board in September 2020, when the Veteran's claim for entitlement to a rating in excess of 20 percent prior to July 26, 2019 was denied and a rating of 60 percent from July 26, 2019 was granted. The Veteran appealed the Board's decision, in part, to the United States Court of Appeals for Veterans Claims (Court). By Order dated May 2021, the Court vacated that portion of the Board's September 2020 decision that denied a rating in excess of 20 percent prior to July 26, 2019 for degenerative arthritis with spinal stenosis and intervertebral disc syndrome (IVDS) and remanded the matter to the Board for compliance with the instructions included in the May 2021 Joint Motion for Remand (JMR) by the parties. The grant of a rating of 60 percent from July 26, 2019 was not disturbed and is no longer on appeal.

In October 2021, the Board remanded this issue to the RO for additional development. 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).

Increased Rating

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, staged ratings will be considered and discussed, as warranted.

VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. Moreover, joint testing is to be conducted on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 170 (2016).

Entitlement to a rating in excess of 20 percent prior to July 26, 2019 for degenerative arthritis with spinal stenosis and intervertebral disc syndrome (IVDS)

The Veteran contends that an increased rating is warranted for his service connection degenerative arthritis with spinal stenosis and IVDS. The Veteran's low back disability has been rated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5243 effective September 27, 2016 to July 26, 2019, and 60 percent thereafter. As explained above, the rating of 60 percent from July 26, 2019 is no longer on appeal.

Under Diagnostic Code 5243, Disabilities of the Spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Formula) (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). The Veteran's low back disability is rated under Diagnostic Code 5243, IVDS.

However, the Board will consider all appropriate Diagnostic Codes relating to the Veteran's low back disability. A lumbosacral strain 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. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted when there is unfavorable ankylosis of the entire 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.

August 2016 VA treatment records reflect that the Veteran had "excellent flexion" and good extension.

The Veteran was afforded a VA examination in October 2016. The Veteran reported intermittent pain and stiffness which increased with prolonged standing and sitting. The examiner noted degenerative arthritis of the spine, spinal stenosis and IVDS. The Veteran reported flare ups with daily intermittent pain with prolonged standing and sitting lasting several hours. Functional loss was noted with pain with motion and limitation of motion. Range of motion testing noted forward flexion to 60 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees and right and left lateral rotation to 20 degrees. The combined range of motion was 160 degrees. Pain was noted and causes functional loss limiting motion. Pain was noted with weight bearing and tenderness with deep palpation at the lumbar paravertebral muscles was reported. The examiner explained that he was unable to provide estimates in terms of range of motion during repeated use or during a flare-up because it was not possible to provide the information based on hypothetical situations. Repetitive use testing noted no additional loss of function or range of motion. Muscle spasms and guarding was noted that does not result in abnormal gait or abnormal spinal contour. Muscle strength testing was 5/5, with no muscle trophy. A reflex exam noted hypoactive left ankle deep tendon reflexes. A sensory exam noted decreased sensation to light touch for left foot/toes(L5). A straight leg test was negative on the right side and positive on the left side. Radiculopathy was noted with moderate left lower extremity pain and mild paresthesias and mild numbness. Left lower extremity radiculopathy impacting the L4/L5/S1/S2/S3 was noted. No ankylosis was noted. IVDS was noted, with no episodes that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran reported regular use of a cane for back pain. Imaging noted arthritis. The examiner noted that the Veteran's back condition impacts his ability to work in that the Veteran has physical limitations with prolonged standing and sitting.

January 2017 Vocational Rehabilitation documents reflect that although the Veteran reported significant back pain, he reported working on his lot for about three hours, using chainsaws, and clearing brush. 

March 2017 VA treatment records reflect that the Veteran was observed with a normal gait and station and used no assistive devices. He had normal range of motion and normal muscle strength. 

The Veteran submitted a Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (DBQ) in June 2017. The Veteran's private treatment provider noted degenerative disc disease. The Veteran reported low, back, mid back and neck pain. The Veteran reported flare ups with increased pain, difficulty finding a comfortable position and increased pain with prolonged sitting or standing. Functional loss was noted with a loss of range of motion of the spine and difficulty standing or ambulating for long periods of time. Range of motion testing noted forward flexion to 90 degrees, extension to 10 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 25 degrees. The combined range of motion was 190 degrees. The examiner noted that the Veteran was unable to complete repetitive use testing due to the possibility of having increased pain and possible fall risk. Painful motion was noted in weight bearing and non-weight bearing. Further, localized tenderness and pain on palpation was noted of the spine and S/I joints. Guarding and muscle spasms were noted with abnormal gait. Functional loss was noted with less movement than normal, weakened movement, excess fatigability, pain on moment, deformity, disturbance of locomotion, interference with sitting and standing and such was associated with limitation of motion. The examiner noted that the Veteran has a decreased ability to move and ambulate with increased pain which contributes to limitation of motion. Muscle strength testing noted reduced right hip flexion of 4/5. All remaining muscle strength testing was 5/5. No muscle atrophy was noted. No ankylosis was noted. A reflex exam was normal. A sensory exam was normal. The straight leg test was negative bilaterally. The Veteran reported no radicular pain or any other subjective symptoms of radiculopathy. The private DBQ noted that pain and paresthesias was present but is not attributed to radiculopathy. No objective findings of radiculopathy were found. No additional objective neurologic abnormalities were present. IVDS was found with incapacitating episodes occurring at least 1 week but less than 4 weeks over the past 12 months. Regular use of cane was noted. The opinion noted that the Veteran's low back condition impacts his ability to perform occupational tasks due to pain and his limited range of motion which results in an inability to sit, stand or walk for any length the time. Noting that the Veteran would not be a candidate for employment or be able to hold a job.

During a September 2017 Social Security Administration (SSA) assessment a physician noted that the Veteran's lay statements were only partially consistent with the physical evidence, explaining that the Veteran's spine disabilities, "could reasonably be expected to produce the alleged symptoms, but the intensity of the symptoms and their impact on the functioning are not consistent with the totality of the evidence."  

September 2017 VA treatment records reflect that the Veteran reported swimming 4-5 times weekly.

During January 2019 VA treatment, the Veteran reported that he had chronic back pain but that he was not currently experiencing any pain.

According to May 2019 VA treatment, the Veteran was living in a motor home that was not connected to a water source. He stated that despite his back issues and dependence on a cane, he filled large water tanks independently for water access. During June 2019 VA treatment, he reported swimming for exercise 2-3 times weekly, which helped relieve back pain.  He was able to travel long distances in his motor home. 

Additional VA treatment records have been associated with the claims file and note ongoing reports of low back pain and limited motion.

Per the May 2021 JMR, the Parties agreed that it was necessary to obtain a medical opinion addressing functional loss or additional loss due to flare-ups and repetitive use over time. Accordingly, a retrospective opinion on the severity and level of loss of function of the Veteran's spinal stenosis and intervertebral disc syndrome of the lumbar spine prior to July 26, 2019 was obtained in October 2021. The examiner stated that the prior VA examination represented the most accurate measurements of the Veteran's range of motion in his spine and level of loss of function. He went on to state that the medical evidence in the claims file was not sufficient to support a determination of a baseline level of severity and it was not medically possible to determine any additional range of motion measurements or loss of function due to pain with use, during flare-ups, during active or passive motion, or with weight-bearing and nonweight-bearing without conducting an examination. Accordingly, it was not possible to provide a retroactive opinion. Although the examiner was not able to estimate the Veteran's range of motion during a flare-up or following repeated use, the Board finds that a remand for another opinion is futile as the examiner explained that there were many factors which affected range of motion, insinuating that the Veteran's back limitations could vary greatly based on circumstance. Furthermore, the Boards finds that there is sufficient evidence in the VA treatment records to adjudicate the issue on appeal.

Based on the lay and medical evidence of record the board finds that the Veteran's low back disability does not more nearly approximate the level of severity contemplated by an increased 40 percent rating during this period on appeal. The Board notes the Veteran's contentions regarding his ongoing low back pain and difficulty with standing, walking and lifting and increased pain with increased movement. The Veteran has also reported increased difficulty with moving and working as a chef. The Veteran is competent to testify to such lay observable symptomatology. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, such lay evidence in this case even when accepted as accurate, does not establish a level of disability contemplated by a higher evaluation.

An increased 40 percent rating is available under Diagnostic Code 5243, with forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. During this period, the VA examination and private DBQ noted forward flexion to 60 degrees, with pain and 90 degrees with pain respectively, and there was no evidence of ankylosis. Thus, at worst during this period on appeal the Veteran's forward flexion was to 60 degrees. Additionally, during this period the VA examination, private DBQ and VA treatment records are absent any indications of forward flexion of the thoracolumbar spine to 30 degrees or less, or any evidence of ankylosis. As such the Board finds that the Veteran is not entitled to an increased rating in excess of 20 percent for the period on appeal for his low back.

The Board also finds the VA treatment records to be highly probative. The Veteran reported swimming multiple times throughout the week, which requires motion of the spine. He reported filling and lifting large water tanks independently, performing physical labor clearing his land for up to three hours at a time, and at times exhibited normal range of motion. 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). As of June 2019, the Veteran reported swimming multiple times a week. Accordingly, there is no indication that he is entitled to a higher rating prior to July 26, 2019.

Regarding assigning a higher disability rating according to 38 C.F.R. §§ 4.40, 4.45, 4.59, the Board finds that painful motion is already contemplated by the currently assigned 20 percent rating. In addition, as shown above, there is no evidence of record reflecting that the Veteran experiences additional functional loss or limitation of motion due to symptoms such as pain, weakness, weakened movement, excess fatigability, or incoordination, beyond that noted by the VA examiner and contemplated herein by the Board. Therefore, the Board concludes that the greater weight of evidence is against assigning additional higher ratings under Deluca.

As noted above, Diagnostic Code 5243 provides for rating disabilities of the spine under either the General Rating Formula for Diseases and Injuries of the Spine, or under the Formula for Rating IVDS, which results in the higher rating. However, there is no evidence of incapacitating episodes as contemplated by the regulation, with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. That would warrant an increased 40 percent rating. The VA examination and private DBQ noted at worst IVDS was found with incapacitating episodes occurring at least 1 week but less than 4 weeks over the past 12 months. The Board has considered the Veteran's reports of more incapacitating episodes but emphasizes that an incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician.

In light of the lack of evidence demonstrating any episodes requiring bed rest prescribed by a physician and treatment by a physician for 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, the Board finds that a higher rating under the formula for rating intervertebral disc syndrome based on incapacitating episodes is not warranted during this period.

As to a separate rating for associated objective neurological abnormalities, the Board notes that the Veteran is currently in in receipt of a separate rating for left lower extremity radiculopathy rated as 10 percent disabling. There is no evidence of record, indicating an increased or additional rating is warranted for ongoing neurological symptomology. As such there is no evidence that an additional rating for neurological abnormalities is warranted during this period on appeal.

All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against finding an increased rating in excess of 20 percent for the Veteran's service-connected low back disability is warranted, for this period on appeal. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3.

 

 

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.