Citation Nr: 21007472 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 13-28 634 DATE: February 9, 2021 ORDER Entitlement to a disability evaluation in excess of 20 percent for lumbosacral spondylosis without myelopathy is denied. FINDING OF FACT Throughout the entire appeal period, the Veteran’s lumbosacral spondylosis without myelopathy was not manifested by forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for lumbosacral spondylosis without myelopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1981 to March 2001. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in April 2018 and August 2019. The Board notes that additional VA medical treatment records were received in the claims file after the July 2020 supplemental statement of case. However, the Board finds that a waiver is not required as these records are duplicative of the evidence that has been considered in previous adjudications of the Veteran’s claims. See 38 C.F.R. § 20.1304. Entitlement to a disability evaluation in excess of 20 percent for lumbosacral spondylosis without myelopathy Disability evaluations are determined by the application of the VA 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 be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the action. 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. 38 C.F.R. § 4.45. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011); see also 38 C.F.R. § 4.59. Further, although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell, 25 Vet. App. at 37. Under 38 C.F.R. § 4.59, at least the minimum compensable rating is warranted for actually painful, unstable, or malaligned joints. “[T]he plain language of § 4.59 indicates that it is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the [Diagnostic Code] under which the disability is being evaluated is predicated on range of motion measurements.” Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016) (holding that the criteria of 38 C.F.R. § 4.59 applies in foot disabilities involving pain such as Diagnostic Code 5280). The provisions of 38 C.F.R. § 4.49 relating to painful motion are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1, 4-5 (2011). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends that his service-connected lumbosacral spondylosis has worsened. The disability is currently assigned a 20 percent rating under DC 5237. A 20 percent evaluation is warranted for forward flection 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. Id. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. And a maximum 100 percent rating is warranted if the Veteran has unfavorable ankylosis of the entire spine. Id. The Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes provides that incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months warrants a 10 percent evaluation. Id. A 20 percent evaluation is warranted where there are incapacitating episodes totaling at least 2 weeks but less than 4 weeks during the past 12 months. Id. A 40 percent evaluation is warranted where there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Id. And a maximum 60 percent evaluation is warranted where there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. The Rating Schedule indicates to evaluate IVDS 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 evaluation. 38 C.F.R. § 4.71a, DC 5237, Note (6). 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. Analysis During a February 2012 VA examination, the Veteran was diagnosed with lumbosacral spondylosis without myelopathy. The Veteran reported that he does not experience flare-ups of his disability. Range of motion measurements were as follows: forward flexion to 70 degrees; extension to 30 degrees or greater; right lateral flexion to 30 degrees or greater; left lateral flexion to 30 degrees or greater; right lateral rotation to 30 degrees or greater; and, left lateral rotation to 30 degrees or greater. There was no objective evidence of painful motion. Repetitive use testing did not result in a decreased range of motion. The examiner noted that the Veteran has functional loss and/or impairment of the thoracolumbar spine due to less movement than normal. He opined that the Veteran’s subjective complaints during the examination appeared out of proportion to objective exam findings and the examination yielded unreliable/inconsistent results. There was no evidence of muscle spasm or guarding. The Veteran had normal muscle strength testing. He did not have muscle atrophy. Reflex and sensory testing was normal. The Veteran was found to have radicular pain noted as mild constant pain of the right lower extremity. There was no IVDS. He did not use any assistive device as a normal mode of locomotion. The Veteran reported his thoracolumbar spine condition impacts his ability to work because lifting, bending and moving files is getting difficult. The Veteran was afforded another examination in June 2015, but the Board found that this examination was inadequate in an August 2017 remand. Specifically, when addressing the Veteran’s range of motion, the examiner did not consider such factors as more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse and instead opined it was impossible to discuss how those factors affected the Veteran without resorting to speculation. The VA examiner did not provide a rationale as to why such opinion could not be provided. Furthermore, the Board remand noted that the VA examiner stated the Veteran has less movement than normal due to ankylosis and then later stated the Veteran did not have ankylosis. The Board remand also noted that the VA examiner failed to adequately consider the Veteran’s complaints of radicular pain. The Veteran was afforded a new thoracolumbar spine VA examination October 2017. He was diagnosed with lumbar spasm and IVDS. The Veteran reported over the past few years his back has gotten worse. He reported that he does not experience flare-ups of the thoracolumbar spine but instead stated that he has constant pain since May 2017. He reported functional loss or functional impairment which he described as prolonged ambulation. The VA examiner noted that the Veteran declined active range of motion, passive range of motion, and repetitive use testing. There was no evidence of pain with weight bearing and no objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. There was no evidence of guarding or muscle spasm. The Veteran had normal muscle strength testing. He did not have muscle atrophy. Reflex testing was normal, except for left ankle, which was noted to be hypoactive. Sensory testing was normal, except for the left lower leg/ankle and left foot/toes, which were noted to be decreased. There was no objective evidence to support ankylosis of the spine, as the Veteran was observed rising from a seated position on a few occasions, bending over to put on and remove shoes and retrieve a knee brace that he removed and had fallen on the floor. The VA examiner noted regular use of a cane and occasional use of a walker as a normal mode of locomotion. Arthritis was documented on imaging studies. The VA examiner further noted that the Veteran’s thoracolumbar spine disability impacted his ability to work but stated that it does not preclude him from working. The VA examiner opined that is impossible to state, without undue speculation, whether pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare ups, or when the joint is used repeatedly over a period of time. However, the examiner did not provide an adequate explanation as to why any such opinion would require resort to speculation, rendering the opinion inadequate. If the examination does not take place during a flare-up, the examiner should attempt to offer an estimate derived from information procured from relevant sources, including the Veteran’s lay statements. An examination that fails to attempt to ascertain adequate information from relevant sources regarding frequency, duration, characteristics, severity, or functional loss during flare-ups will be considered inadequate. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). There is no indication that the examiner made any attempt to ascertain adequate information from relevant sources to provide the requested opinion. The Board remanded the Veteran’s claim in April 2018 because the Veteran challenged the adequacy of the October 2017 VA examination. In a February 2018 statement the Veteran asserted that he did not refuse to complete range of motion testing as reported by the examiner, instead he asserted the examiner told him that it was acceptable to not perform the testing, and requested that a new examination be conducted so that his range of motion could be tested. Furthermore, the Board remand noted that the VA examiner did not provide an explanation as to why his opinion would require resort to speculation. The record reflects that the Veteran underwent lumbar laminectomy in April 2018. A May 2018 private treatment record indicates that on follow-up the Veteran reported some improvement but still has residual leg weakness. He reported muscle cramps, lower back pain, numbness/tingling, insomnia, depression and anxiety. The record notes that convalesce will take 3 months for his back to heal and up to a year for maximal nerve recovery. A temporary total disability rating based on convalescence under 38 C.F.R. § 4.30 has been assigned from April 4, 2018 to August 1, 2018. At an October 2018 thoracolumbar spine VA examination, the Veteran reported pain in his back developed in service and has worsened gradually over time. He reported pain did not improve after his April 2018 lumbar laminectomy. He reported that he does not experience flare-ups of his disability. He reported functional loss or functional impairment which he described as limitation in walking not more than 100 feet, standing not more than 5 minutes, sitting not more than 10 minutes, bending the back and twisting. He stated he cannot lift anything, squat or run. Range of motion measurements were as follows: forward flexion to 65 degrees; extension to 15 degrees; right lateral flexion to 15 degrees; left lateral flexion to 15 degrees; right lateral rotation to 15 degrees or greater; and, left lateral rotation to 15 degrees or greater. Range of motion was noted to contribute to functional loss due to lower back pain. There was evidence of pain with weight bearing. The Veteran was able to perform repetitive-use testing with three repetitions with no additional loss of range of motion. Pain was noted to significantly limit functional ability with repeated use over time. The Veteran did not have any localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. There was evidence of guarding and muscle spasm resulting in abnormal gait or abnormal spinal contour. The Veteran had normal muscle strength testing. He did not have muscle atrophy. Reflex testing was hypoactive for the right and left knee and absent for the left ankle. Sensory testing was normal. The Veteran was not found to have any radicular pain or any signs or symptoms due to radiculopathy as a result of his spine disability. The examiner explained he did not find radiculopathy because the symptoms in the left lower extremity do not appear to be in a territory of a particular nerve root or a particular peripheral nerve. There was no ankylosis of the spine or IVDS. The VA examiner indicated he used a walker as a normal mode of locomotion. Arthritis was documented on imaging studies. The VA examiner noted nerve conduction/EMG studies of the right lower extremity done on February 20, 2014 were normal and there is no electrophysiologic evidence for polyneuropathy, myopathy, or lumbosacral motor radiculopathy in this study. The VA examiner further noted that the Veteran’s thoracolumbar spine disability impacted his ability to work based on the Veteran’s self-reported symptoms. At a December 2019 thoracolumbar spine VA examination, the Veteran reported no change in his back pain since his October 2018 VA examination. He reported that he does not experience flare-ups of his disability. He reported functional loss or functional impairment described as limitation in walking and unable to do any exercise. He further stated he is unable to bend down to tie his shoes and needs help from his wife with toileting and dressing. Range of motion measurements were as follows: forward flexion to 50 degrees; extension to 15 degrees; right lateral flexion to 25 degrees; left lateral flexion to 25 degrees; right lateral rotation to 25 degrees or greater; and, left lateral rotation to 20 degrees or greater. There was no evidence of pain with weight bearing. The Veteran was able to perform repetitive-use testing with three repetitions with no additional loss of range of motion. Pain was noted to significantly limit functional ability with repeated use over time, with forward flexion limited to 40 degrees. The Veteran did not have any localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. There was no evidence of guarding or muscle spasm. He had normal muscle strength testing, except for testing at active movement against some resistance for left great toe extension. He did not have muscle atrophy. Reflex and sensory testing was normal, except for left ankle, which was noted to be hypoactive. The Veteran was found to have radicular pain or signs or symptoms due to radiculopathy as a result of his lumbosacral spondylosis without myelopathy. Symptoms included: mild, intermittent pain of the left lower extremity; and mild numbness of the left lower extremity. There was no ankylosis of the spine. He was found to have IVDS, however, he did not have any incapacitating episodes due to IVDS. The VA examiner indicated he used a cane and a walker as a normal mode of locomotion. The VA examiner further noted that the Veteran’s thoracolumbar spine disability did not impact his ability to work. In light of the foregoing, the Board finds that a disability rating in excess of 20 percent for the Veteran’s lumbar spine disability is not warranted. The evidence of record reflects limitation of forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees. 38 C.F.R. § 4.71a, DC 5237. Accordingly, the Board finds that the Veteran’s disability picture is accurately reflected in a 20 percent disability rating. Id. Further, as there is no evidence of ankylosis, either favorable or unfavorable and although the Veteran experiences painful motion, the record does not contain any indication that this painful motion is equivalent to ankylosis as he is still able to walk and admits to very limited exercise. See December 2019 VA examination. The Board notes that the Veteran has specifically indicated during his VA examinations, that he does not experience flare-ups of this disability. While the Veteran was noted to have IVDS, as he does not have any incapacitating episodes, a higher evaluation is not warranted under the General Rating Formula for Diseases and Injuries of the Spine. The Veteran has submitted multiple lay statements in support of his claim. Upon review, these statements document the Veteran’s difficulty standing, squatting and bending at work. It was noted that the Veteran was provided with an improved office chair and furniture had been rearranged to minimize his movement. The record indicates that the Veteran has retired after 34 years working for the Federal Government. See a June 2018 VA Mental Disorders Examination. The record does not indicate that the Veteran is unemployable due to his back disability and he does not appear to contend otherwise. VA is not required to infer a claim for a total disability rating based on individual unemployability (TDIU) just because the evidence shows some limitations due to a service-connected disability contemplated by a compensable disability rating. Entitlement to a TDIU “can be implicitly raised only where the veteran proffers some evidence of unemployability.” Jackson v. Shinseki, 587 F.3d 1106, 1111 (Fed. Cir. 2009). Regarding neurological impairment, the Board acknowledges that 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. Here, the Veteran has already been granted service connection for left lower extremity radiculopathy, and the evidence of record is against a finding that the Veteran has any other objective neurological abnormalities associated with his spine disability. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for the service-connected lumbosacral spondylosis without myelopathy. As such, the benefit of the doubt doctrine is not applicable, and the Veteran’s claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Aston, 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.