Citation Nr: 21075945 Decision Date: 12/22/21 Archive Date: 12/21/21 DOCKET NO. 18-34 314 DATE: December 22, 2021 ORDER Entitlement to an initial disability rating of 40 percent, but no higher, for degenerative arthritis of the lumbar spine is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the manifestations of the Veteran's degenerative arthritis of the lumbar spine most closely approximate favorable ankylosis of the entire thoracolumbar spine. CONCLUSION OF LAW The criteria for entitlement to a disability rating of 40 percent, but no higher, for degenerative arthritis of the lumbar spine have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.71a. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Navy from July 1964 to July 1968. This matter originates from an appeal of a December 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for degenerative arthritis of the lumbar spine and assigned a 20 percent disability rating. These matters return to the Board of Veterans' Appeals (Board) following a September 2021 remand for additional development. A remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). In September 2021 the Board directed that the Veteran be afforded a VA examination that addressed the severity of the Veteran's lumbar spine disability in a manner consistent with the Court of Appeals for Veterans Claims (CAVC) holding in Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). A VA examination was obtained in October 2021. The October 2021 VA examiner elicited information from the Veteran regarding severity of his disability during flare ups or after repeated use over time, and provided an estimated range of motion in degrees for the thoracolumbar spine during flare ups or after repeated use over time. Accordingly, the Board finds that there has been substantial compliance with its September 2021 remand directives and substantive adjudication of the Veteran's claim is appropriate. The Board notes that it has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Entitlement to a disability rating of 40 percent, but no higher, for degenerative arthritis of the lumbar spine is granted. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In the context of examinations evaluating functional loss in the musculoskeletal system under diagnostic codes based upon limitation of motion, when pain is associated with movement, to be adequate for rating purposes an examination must address whether pain could significantly limit functional ability during flare-ups. See Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011), DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). In evaluating a claim for disability benefits, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. The Veteran's degenerative arthritis of the lumbar spine is evaluated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. The Veteran's current disability rating of 20 percent requires a showing of limitation of forward flexion of the thoracolumbar spine to greater than 30 degrees, but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to resulting in an abnormal gait or abnormal spinal contour. Id. A disability rating of 40 percent requires a showing of limitation of flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Id. Higher disability ratings require showings of unfavorable ankylosis. The Board notes that the General Rating Formula does not allow the VA to distinguish between the thoracic and lumbar spine segments; the thoracic and lumbar spines may not be rated separately. Langdon v. McDonough, No. 2020-1789, 2021 U.S. App. LEXIS 17115, at *6 (Fed. Cir. June 9, 2021). For VA compensation purposes, unfavorable ankylosis is 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. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 5. Ratings in excess of 40 percent may also be assigned under diagnostic code 5243 (Intervertebral disc syndrome). 38 C.F.R. § 4.71a. Ratings under diagnostic code 5243 require a showing of disc herniation with compression and/or irritation of the adjacent nerve root, and are based on number and duration of incapacitating episodes. Id. Ratings in excess of 40 percent under diagnostic code 5243 require a showing of incapacitating episodes having a total duration of at least 6 weeks during the previous 12 months. Id. For purposes of evaluations 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, note 1. A December 2016 VA examiner provided an estimate of 45 degrees of forward flexion during flare ups. The examiner documented no ankylosis. VA has received a January 2017 evaluation of the Veteran's lumbar spine degenerative arthritis by a private treating provider. The private treating provider stated that the Veteran's low back pain "directly contributes to the amount of ankyloses in his lumbar spine." The examiner also noted significant osteophyte formation of a size that would "take years to develop" and that would permanently change the biomechanics of the joint segment. The Board finds the January 2017 private evaluation to be highly probative, as it reflects treatment of the Veteran from August 2016 to January 2017. The Board finds the private provider to be familiar with the Veteran's presentation and manifestations of his lumbar spine disability over time. The Board acknowledges that the private provider's evaluation of the Veteran's lumbar spine ankylosis identifies pain as a contributing factor. This is consistent with the CAVC holding in Chavis v. McDonough that ankylosis of the spine can be demonstrated by its functional equivalent. 34 Vet. App. 1, 11 (U.S. 2021). The Veteran was afforded a VA examination in December 2017; however, in September 2021 the Board determined that this examination was inadequate for rating purposes. An October 2021 VA examiner provided an estimate of 40 degrees of forward flexion during flare ups. The examiner documented no ankylosis. The Board finds this examination to be of limited probative value as it does not address the January 2017 private evaluation reflecting diagnoses of biomechanical and functional ankylosis. The Board finds that the evidence is at least in equipoise as to whether the Veteran's degenerative arthritis of the lumbar spine has manifested as favorable ankylosis of the thoracolumbar spine. (Continued on the next page) There is no evidence of record reflecting ankylosis resulting 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. Further, there is no evidence of record reflecting disc herniation with compression and/or irritation of the adjacent nerve root and/or incapacitating episodes (as defined by 38 C.F.R. § 4.71a, diagnostic code 5243) having a total duration of at least 6 weeks during the previous 12 months. In light of the foregoing, the Board concludes that the criteria for a disability rating of 40 percent, but no higher, for degenerative arthritis of the lumbar spine are met, and the same is hereby granted. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.71a. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. C. Sametshaw 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.