Citation Nr: 21007618 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 15-15 829 DATE: February 10, 2021 ISSUE Entitlement to a disability rating in excess of 40 percent for service-connected degenerative arthritis with degenerative disc disease and spinal stenosis of the thoracolumbar spine (a spine disability). ORDER Entitlement to a disability rating in excess of 40 percent for service-connected degenerative arthritis with degenerative disc disease and spinal stenosis of the thoracolumbar spine (a spine disability) is denied. FINDINGS OF FACT The Veteran’s spine disability is manifested by painful flare ups and muscle spasms, which occur 4-6 times per year, and lead to functional loss, including a limitation in duration of walking, sitting, bending, stooping and twisting. His range of motion during a flare up is, at worst, shown by forward flexion and extension to 5 degrees, right lateral flexion to 5 degrees, left lateral flexion to 10 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 5 degrees. He does not have ankylosis of the spine, and he has not had any incapacitating episodes whereby a physician has prescribed him bed rest over the past twelve months for his diagnosed intervertebral disc syndrome (IVDS). CONCLUSION OF LAW The criteria for a disability rating in excess of 40 percent for the Veteran’s service-connected degenerative arthritis with degenerative disc disease and spinal stenosis of the thoracolumbar spine (spine disability) have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5238-5242. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Army from September 1988 to August 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, the Veteran was granted entitlement to service connection for degenerative changes of the lumbosacral spine at 40 percent disabling in September 2004. The Veteran filed a claim for an increase to that disability rating, which was denied in May 2010. The Veteran filed a Notice of Disagreement (NOD) in September 2010, and he was issued a statement of the case (SOC). The Veteran filed a timely Form 9 in April 2015, and the Veteran’s claim was certified to the Board in June 2015. The Veteran’s claim was then before the Board in December 2018, however the matter was remanded for additional development and adjudication. The claim was then returned to the Board in July 2020, but in that Decision, the Board had determined that the remand directives set out in December 2018 were not substantially followed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As a result, the Veteran’s claim was remanded again. In following with the July 2020 Remand directives, the RO gave the Veteran a VA examination, and then granted an outstanding issue of entitlement to service connection for spinal stenosis. The grant of service connection for spinal stenosis was then combined with the Veteran’s current rating of his spine disability in a rating decision from October 2020, however the disability rating remained the same. As a result, the Board has recharacterized the description of the Veteran’s claim to that of entitlement to a disability rating in excess of 40 percent for service-connected degenerative arthritis with degenerative disc disease and spinal stenosis of the thoracolumbar spine (a spine disability). See, Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board also finds that there has been substantial compliance with the prior remand directives from July 2020. See Stegall, Id.; Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Veteran’s claim has since returned to the Board. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to a disability rating in excess of 40 percent for service-connected degenerative arthritis with degenerative disc disease and spinal stenosis of the thoracolumbar spine (a spine disability). The Veteran has claimed that his spine disability is worse than currently rated. 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). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 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). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare-ups. 38 C.F.R. § 4.14. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are related considerations. 38 C.F.R. § 4.45. The final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain 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 (2016). A recent Court decision also addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. The Veteran’s spine disability is currently rated at 40 percent disability for the entire period on appeal and is rated under Diagnostic Code 5238-5242. This rating represents the combined rating of spinal stenosis (DC 5238) and degenerative arthritis of the spine (DC 5242). Disabilities of the spine are rated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating. Under the General Rating Formula, a spine disability is rated as follows: A 10 percent evaluation is warranted where forward flexion of the cervical spine is greater than 30 degrees but not greater than 45 degrees; or, the combined range of motion of the cervical spine is greater than 170 degrees but not greater than 335 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 of the height. A 20 percent evaluation is warranted where forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine is not greater than 170 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. A 30 percent evaluation is warranted for forward flexion of the cervical spine of 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is assigned with unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Spinal Formula. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides for rating based on the total duration of incapacitating episodes. 38 C.F.R. § 4.71a, IVDS Formula. Incapacitating episodes are defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. Note (1). A 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks. A 40 percent disability rating is assigned or IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Turning to the available evidence, the Veteran wrote in a statement from April 2015 that his disability was “no longer mild … it is severe.” In a letter addressed to the Veteran’s Congressional Representative from March 2019, the Veteran indicated that his lumbosacral disability had spread throughout his spine, and that his thoracic spine claim “was never adjudicated by the VA.” In the letter, the Veteran described some of the symptoms related to his spine disability, including the pain, which resulted from “lying around,” his need for pain medicine and muscle relaxers. He also wrote that he has intervertebral disc syndrome (IVDS), insofar as he “cannot function for weeks and sometimes months at a time,” but also wrote that “I do not need to go to a doctor and have them tell me that I need to lay in bed and not do anything.” The Veteran wrote that he believes he has ankylosis of the spine, because I hurt breathing, standing, walking, sitting, thinking, etc. … just because I choose to move and enjoy some sort of semblance of a life does not mean that I do not hurt. The Veteran also wrote that the VA “doctor never checked me for muscle spasms.” As noted in the Board’s July 2020 remand, this statement from the Veteran relates to a March 2018 VA examination. The Veteran submitted correspondence in August 2020 whereby he described his current symptoms. The Veteran wrote that he has “inflammation, muscle spasms, pain, limited movement, and my back muscles are always tense … I get [shots], pain medicine and muscle relaxers.” He described difficulty driving for long periods of time, and that “the arthritis has spread from my lower/thoracic to my cervical spine.” The Veteran is competent to report the symptoms he experiences, such as those associated with his spine disability. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Turning chronologically to the available medical evidence, the Veteran’s claims file contains a private examination from November 2010. The Veteran was seen in person, and there is an indication that his claims file was reviewed. The Veteran’s lay statements, including his description of back pain, was noted by the examiner, and range of motion (ROM) testing was performed. Importantly, IVDS was noted, yet there was no prescribed bed rest by the physician. The examiner also specifically noted that “there is no ankylosis of the thoracolumbar spine.” The Veteran was then given a VA examination in July 2014. The Veteran was seen in person, and the claims file was reviewed. After confirming the diagnosis, the examiner cited the Veteran’s lay statements that his pain “is the same and is constant.” They also noted that he had spinal stenosis but denied that the Veteran experienced flare ups. Following clinical testing, to include ROM and muscle strength testing, the examiner indicated that the Veteran did not have ankylosis of the spine. The examiner also indicated that the Veteran did not have IVDS, and no other pertinent physical findings or complications were noted. The Veteran’s claims file includes a Disability Benefits Questionnaire (DBQ), signed by a private examiner from November 2014. The DBQ indicates that the Veteran was seen in person, and that the Veteran experience flare ups, which were described as including “muscle spasms, tightness, radiating pain.” ROM could not be completed “because the Veterans stated that he was in severe pain and he could not move the back at all.” Despite that finding however, the examiner denied that the Veteran had ankylosis, and wrote that “this refusal to move the back due to pain is in contrast to the minimum abnormal findings in the exam.” The examiner denied that the Veteran had IVDS, or that he had experienced any incapacitating episodes over the past twelve months. The Veteran was given a VA contracted examination in January 2015. It is unclear as to whether or not the Veteran was seen in person. During the exam, the Veteran reported flare ups that result in “pain everyday [and] stiffness.” On clinical testing, the Veteran had reduced ROM, and reduced muscle strength. The examiner wrote that the Veteran had IVDS, and that he had “at least 6 weeks” of incapacitating episodes over the past 12 months. This represents the first time that an examiner found the Veteran’s IVDS had resulted in incapacitating episodes. Ankylosis was not mentioned, nor discussed, and portions of this examination report are incomplete. As it relates to the January 2015 VA-contracted examination, the Board affords the exam minimum probative weight as to the severity of the Veteran’s disability, as portions of the examination are incomplete, and it appears that the exam was conducted solely based on the lay statements as provided by the Veteran. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran’s claims file contains a spinal DBQ from March 2015, signed by a private examiner. During the exam, the Veteran described “constant low back pain with intermittent worsening.” The Veteran also described flare ups whereby he has “to seek some sort of medication to knock it out.” On ROM testing, the Veteran exhibited forward flexion to 40 degrees, no extension, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 10 degrees. The Veteran had shown limited muscle strength testing, rated at a 4 out of possible 5. The Veteran was noted to have IVDS, but the examiner noted that the Veteran did not have any incapacitating episodes over the past 12 months which required prescribed bed rest. The Veteran did not have ankylosis upon clinical testing. The Veteran was given a VA examination in March 2018. The Veteran was seen in person, and his claims file was reviewed. During the exam, the Veteran described flare ups of his spine, stating that “it gets really stiff and painful.” Following ROM and muscle strength testing, the examiner specifically denied that the Veteran had ankylosis, and they also denied that the Veteran had IVDS of the spine. As it relates to the March 2018 VA examination, the Board recognizes that the examination has already been deemed inadequate by the prior Board Decision in July 2020, as it did not incorporate the Veteran’s claims of flare ups and muscle spasms. Most recently the Veteran was given a VA examination in October 2020. The Veteran was seen in person, and his claims file was reviewed. The examiner noted the lay statements of the Veteran, including that he experiences muscle spasms and flare ups. Those flare ups were noted to occur 4-6 times per year, that they are “excruciating,” and take “6 weeks to return to baseline.” On ROM testing, the Veteran exhibited forward flexion to 15 degrees, extension to 5 degrees, right and left lateral flexion to 10 degrees, right lateral rotation to 15 degrees and left lateral rotation to 10 degrees. Pain was noted with weight bearing, which caused functional loss. After repeated use over time, the Veteran exhibited forward flexion to 10 degrees, extension and right lateral flexion to 5 degrees, and left lateral flexion, and right and left lateral rotation to 10 degrees each. During a flare up, these measurements were largely consistent, however forward flexion was limited to 5 degrees. Importantly, the Veteran did not exhibit ankylosis during the exam, and while the Veteran did have a diagnosis of IVDS, he did not have any noted incapacitating episodes over the past twelve months that required bed rest as prescribed by a physician. No other pertinent findings were made. Aside from the January 2015 and March 2018 examinations, there is no evidence that the VA examiners or the private examiners were not competent or credible, and as the reports were based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the severity of the Veteran’s disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In consideration of the above, the Board finds that the current severity of the Veteran’s spine disability more nearly approximates the current 40 percent disability rating for the entire period on appeal. During the most recent VA examination in October 2020, which the Board has afforded significant probative weight, the Veteran exhibited flare ups and muscle spasm, which caused his ROM to be, at worse, forward flexion and extension to 5 degrees, right lateral flexion to 5 degrees, left lateral flexion to 10 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 5 degrees. These measurements most nearly approximate the 40 percent disability rating. Importantly, according to the General Spinal Formula, the only disability ratings available over the current 40 percent rating are a 50 percent disability rating for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Spinal Formula. According to the Ratings Schedule for IVDS, a 60 percent disability rating is available for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Despite the extensive medical evidence available, including the VA and private examinations, the Veteran has at no point demonstrated a diagnosis of ankylosis. No examinations have found that he has either ankylosis of the thoracolumbar spine, nor the entire spine. VAMC and CAPRI records are also consistent in this regard. In fact, examinations from November 2010, July 2014, March 2015, and as recently as October 2020 specifically denied that the Veteran had ankylosis. Furthermore, examinations and DBQs from November 2014 and January 2015 did not indicate that the Veteran had a current diagnosis of ankylosis. The Veteran also wrote in March 2019 that he believed he had ankylosis, yet described symptoms of pain upon movement, as opposed to a complete inability to move. Again, follow up examinations after that statement was written have indicated that the Veteran does not have a current diagnosis of ankylosis. The Board also notes that the Veteran does not fit the criteria for a higher disability rating based on the IVDS formula. The only rating available higher than 40 percent based on that formula is 60 percent disability rating, for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. To be sure, a number of examinations indicated that the Veteran dose have a diagnosis of IVDS, including in November 2010, March 2015, and October 2020, however those examiners denied that the Veteran had any periods of incapacitation which required bed rest as prescribed by a physician. Examinations from July 2014 and November 2014 indicated that the Veteran did not have a diagnosis of IVDS whatsoever. The Board acknowledges that a single VA-contracted examination from January 2015 did indicate that the Veteran had IVDS which resulted in at least 6 weeks of prescribed bed rest as required by a physician. Having said that, the Board has afforded this examination minimal probative weight for the reasons described above, and further notes that subsequent exams, including VAMC records, do no indicate that the Veteran has ever been prescribed any period of bed rest. Furthermore, CAPRI records, to the extent that they discuss IVDS, do not describe any period of incapacitation with bed rest that has been prescribed by a physician. In addition, in the Veteran’s March 2019 statement, he wrote that he does “not need to go to a doctor and have them tell me that I need to lay in bed and not do anything,” which essentially denies that he has been prescribed bed rest by a physician in the past. Thus, while the current severity of the Veteran’s spine disability is more nearly approximated by the 40 percent disability rating, the preponderance of the evidence is against a finding that he is entitled to a disability rating in excess of 40 percent. Thus, the Board finds that the severity of the Veteran’s spinal disability more nearly approximates the 40 percent disability rating. Consequently, the benefit-of-the-doubt rule does not apply and entitlement to a disability rating in excess of 40 percent is denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, 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.