Citation Nr: 21006954 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 10-45 763 DATE: February 8, 2021 ORDER Entitlement to increases in the “staged” (10 percent prior to December 19, 2016 and 20 percent from that date) ratings assigned for lumbar spine spondylolisthesis with degenerative arthritis (low back disability) is denied. FINDINGS OF FACT 1. Prior to December 19, 2016, the Veteran’s low back disability was not shown to be manifested by forward flexion limited to 60 degrees or less, and there was no evidence of ankylosis or guarding resulting in abnormal gait or posture; periods of treatment-provider-prescribed bedrest were not shown. 2. From December 19, 2016, the low back disability is not shown to have been manifested by forward flexion limited to 30 degrees; ankylosis of the spine is not shown; and incapacitating (requiring bedrest prescribed by a treatment-provider) episodes are not shown. CONCLUSION OF LAW Ratings for a low back disability in excess of 10 percent prior to December 19, 2016, and in excess of 20 percent from that date, are not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.71a, Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a Veteran who served on active duty from April 1978 to March 1989. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2010 Department of Veterans Affairs (VA) rating decision. In February 2017, January 2018 and October 2019 the matter was remanded for further development. Entitlement to increases in the “staged” (10 percent prior to December 19, 2016 and 20 percent from that date) ratings assigned for a low back disability is denied. Initially, it is noted that the Veteran has been found to have neurological manifestations of the low back disability, for which service connection has been established, and separate compensable ratings are assigned (bowel disturbances, and bilateral lower extremity radiculopathy). Those ratings are not at issue in this appeal, and will not be discussed further. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s low back disabilities are rated under Code 5242 and the General Rating Formula for rating spine disability (General Formula). Under the General Formula a 10 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than to 60 degrees, but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, where there is 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 when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine is less than 120 degrees; or, when there is 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 when forward flexion of the thoracolumbar spine is limited 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. Where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for an increased rating, “staged” ratings may be warranted where the factual findings show distinct periods when the service-connected disability exhibits symptoms warranting different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Under 38 C.F.R. § 4.40, consideration must be given to functional loss due to pain and weakness causing additional disability beyond that reflected by range of motion measurements. Under 38 C.F.R. § 4.45, consideration must be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. Painful, unstable, or misaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The instant claim for increase was received in January 2009. Accordingly, the period for consideration begins one-year prior in January 2008. Notably, prior to January 1, 2008 a 100 percent rating was assigned for the disability for convalescence following a surgical procedure in August 2007. Effective January 1, 2008 the 10 percent rating assigned for the low back disability prior to that surgery was resumed. A June 2008 CT scan showed grade 1 retrolisthesis of L5 over S1 with reduction in the intervertebral disc height, endplate sclerosis and subchondral cyst; a prominent subchondral cyst in the left posteroinferior aspect of L5 causing posterior convexity of the cortical margin near the cortical margin in the region of the left neural foramen, and bilateral facet joint hypertrophy at this level, with resulting multi-factorial severe left neural foraminal narrowing with compression of the left L5 exiting nerve root as well as conjoined nerve roots of S1 and S2. A June 2010 private treatment record, when the Veteran was seen with left hip and hand complaints, notes physical examination of the back found no area of particular tenderness, spasm, or list. A March 2012 treatment record shows the Veteran was seen with complaints of back pain. The impression was low back pain with lumbar degenerative spondylolisthesis status post instrumentation and fusion and lumbar radiculopathy. On May 2016 back conditions DBQ, the diagnoses were degenerative arthritis of the spine, and spondylolisthesis. The Veteran reported flare-ups that included difficulty negotiating stairs and with prolonged sitting, and that cold weather and/or weather changes exacerbated back pain. Range of motion studies found flexion to 80 degrees, extension to 10 degrees, right later flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 25 degrees. There was no guarding or muscle spasm, and no muscle atrophy. It was noted that the Veteran had IVDS, which had not required bed rest prescribed by a physician and treatment within the past twelve months. It was noted that the Veteran constantly wore a brace, and frequently used a cane. Functional impact regarding ability to work included avoidance of prolonged sitting (which exacerbates his back pain). It was noted he was fitted for an ergonomic chair and a standing workstation. The examiner commented that the Veteran’s back condition was of moderate severity. In November 2016 the Veteran was seen for complaints of low back pain. He reported treatment with massage therapy, and NSAID (and surgical intervention in 2007). On low back examination localized tenderness was noted. The provider offered treatment modalities of pain control and physical therapy (which, it was noted, the Veteran declined). On December 19, 2016 back conditions DBQ (by a private physician, who indicated that the Veteran’s claims file was not reviewed), the diagnoses were facet joint arthropathy, degenerative disc disease (DDD), and spondylolysis. The Veteran reported flare-ups that included difficulty standing, doing yardwork, and climbing stairs as well as difficulty with range of motion and pain. Range of motion studies found flexion to 50 degrees, extension to 15 degrees, and right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation, each to 30 degrees. There was no guarding or muscle spasm. Gait and spinal contour were normal. Functional loss included less movement than normal, weakened movement, pain on movement, interference with sitting, and interference with standing. The provider opined that a flare-up was forward flexion would be limited to 40 degrees, extension to 15 degrees, and right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation, each to 0 degrees. Muscle strength testing was normal. There was no muscle atrophy, ankylosis, or radiculopathy was not shown. The provider checked off a block indicating there were incapacitating episodes of IVDS totaling at least four weeks, but less than six weeks, in the past year. An April 2017 lumbar spine X-Ray showed postsurgical changes at L5-S1 without evidence of acute abnormality or hardware complications. On April 2017 back conditions DBQ, the diagnoses were spinal fusion, and low back disability. The Veteran did not report flare-ups. Range of motion studies found flexion to 50 degrees, extension to 15 degrees, right lateral flexion to 10 degrees, left lateral flexion to 15 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 25 degrees. Pain which contributed to functional loss was noted on examination. Muscle spasm, localized tenderness, and guarding, each not resulting in abnormal gait or abnormal spinal contour were noted. There was muscle atrophy of the left lower extremity. The spine was not ankylosed. Neurologic abnormalities noted included occasional intermittent bowel incontinence. IVDS was not found. It was noted that the Veteran occasionally relied on use of a cane. The examiner opined that the Veteran’s ability to work was impacted by greater than five weeks lost in the last twelve months due to his thoracolumbar spine disability, and the inability to bend, stoop or stand for extended periods. On February 2020 back conditions DBQ, the diagnosis was degenerative arthritis of the spine. The Veteran reported that receiving deep tissue massage therapy and acupressure for treatment of his back disability. Flare-ups were not reported. Range of motion studies showed flexion to 60 degrees, extension to 10 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 25 degrees. There was no guarding or muscle spasm of the thoracolumbar spine, and no muscle atrophy or ankylosis. IVDS was not found. It was noted that the Veteran occasionally used a cane. Functional impact related to employment included difficulty lifting and pushing heavy objects and inability to engage in prolonged bending. At the outset, it is noteworthy that the Veteran’s service connected back disability includes degenerative disc disease and he has been found to have IVDS. See May 2016 back conditions DBQ. However, it is not shown that at any time under consideration, bedrest for treatment of an incapacitating episode of IVDS was prescribed by a physician. Consequently, the record provides no basis for consideration of alternatively rating the disability based on total duration of incapacitating episodes of IVDS. In that regard, the Board specifically notes the December 2016 private DBQ check-off indicating that in the past year the Veteran had incapacitating episodes of at least 4, but less than 6 weeks of “incapacitating episodes”. Significantly, the provider did not indicate that these were periods when bedrest by a physician was prescribed. Furthermore, that provider indicated that the Veteran’s claims file (and medical records therein) was not reviewed (so the basis for the conclusion that there were 4 or more weeks of “incapacitating episodes” in the prior year is unknown. Finally, in a May 2016 DBQ the provider indicated that the Veteran had not had any episodes of physician-prescribed bedrest in the past year, and treatment records in the file for the interim period between May and December 2016 (specifically including in November 2016) contain no mention of physician-prescribed. Consequently, the Board finds that a period or periods of acute signs and symptoms of IVDS requiring bed rest prescribed by a physician and care by a physician are not shown. Prior to December 19, 2016 For the period prior to December 19, 2016, there is no evidence that forward flexion of the Veteran’s lumbar spine was limited to 60 degrees or less, or that combined range of motion was 120 degrees or less, or that there was muscle spasm or guarding resulting in abnormal gait or abnormal contour. The degree of impairment shown, and the Veteran’s complaints of pain and stiffness do not reflect impairment of a severity that exceeds what is contemplated by the criteria for the 10 percent rating assigned. His reports of localized tenderness and pain do not establish he had an abnormal gait or abnormal spine contour. Therefore, a rating in excess of 10 percent for the low back disability was not warranted prior to December 19, 2016. From December 19, 2016 From December 19, 2016 the Veteran’s low back disability is rated 20 percent based on findings on the private December 19, 2016 back conditions DBQ. The evidence of record does not show that at any time since that examination forward flexion of the Veteran’s thoracolumbar spine was limited to 30 degrees or less, or that the spine was ankylosed. Accordingly, a rating in excess of 20 percent for the low back disability from December 19, 2016 is not warranted. As is noted above, bowel and lower extremity neurological manifestations of the low back disability are separately rated, and those ratings are not at issue herein. Additional compensable neurological manifestations have not been reported or alleged. Finally, the Board noted that the matter of entitlement to a total disability rating based on individual unemployability has not been raised in the context of the instant claim for increase. On 2017 examination it was noted that he had lost some time from work due to the disability (suggesting he remained employed). On the 2020 examination physical restrictions in employment due to the disability were noted, and do not suggest that the low disability rendered him unemployable. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Staskowski, Associate 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.