Citation Nr: 21007753 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 16-13 842 DATE: February 10, 2021 ORDER Entitlement to increased disability rating in excess of 10 percent for degenerative arthritis of the spine prior to July 12, 2018 is denied. Entitlement to increased disability rating in excess of 20 percent for degenerative arthritis of the spine as of January 12, 2018 is denied. Entitlement to increased disability rating in excess of 40 percent for degenerative arthritis of the spine from January 20, 2020 is denied. FINDINGS OF FACT 1. The Veteran’s symptoms of degenerative arthritis of the spine prior to July 12, 2018 included forward flexion limited to 85 degrees, a combined range of motion of 235 degrees without evidence of muscle spasm, guarding, or localized tenderness resulting in abnormal gait or abnormal spinal contour. 2. As of January 12, 2018, the Veteran’s symptoms of degenerative arthritis of the spine at worst included forward flexion limited to 35 degrees and muscle spasm with an abnormal gait. 3. From January 20, 2020, the Veteran’s symptoms of degenerative arthritis of the spine at worst reflects painful motion with 30 degrees of forward flexion, a combined range of motion of the thoracolumbar spine limited to 80 degrees with muscle spasm resulting in abnormal gait, and pain upon weight bearing without evidence of ankylosis or intervertebral disc syndrome. CONCLUSIONS OF LAW 1. The criteria for increased rating in excess of 10 percent for degenerative arthritis of the spine prior to July 12, 2018 have not been met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2.The criteria for increased rating in excess of 20 percent for degenerative arthritis of the spine as of July 12, 2018 have not been met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3.The criteria for increased rating in excess of 40 percent for degenerative arthritis of the spine from January 20, 2020 have not been met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has active duty service in the United States Navy from January 1982 to January 1986 and from January 1986 to February 2006. These matters are before the Board of Veterans Appeals (Board) upon appeal from a July 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama which continued the Veteran’s 10 percent disability rating for her lower back disability. During the pendency of the appeal the RO issued a rating decision and Supplemental Statement of the Case (SSOC) increasing the Veteran’s disability rating to 20 percent effective July 12, 2018. In September 2019, the Board remanded the Veteran’s claim for further development. The RO subsequently issued a rating decision and SSOC increasing the Veteran’s disability rating for degenerative arthritis of the spine from 20 percent to 40 percent effective January 20, 2020. As this rating does not constitute a full grant of benefits, the claim is still on appeal before the Board. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board finds that there has been substantial compliance by the RO with the Board’s September 2019 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran testified at a Travel Board hearing at the RO before the undersigned Veterans Law Judge in June 2019. A transcript of the hearing has been associated with the record. Increased Ratings Disability ratings are determined by comparing the Veteran’s symptoms with the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Schedule is primarily a guide under the law for rating disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. See Jones v. Shinseki, 26 Vet. App. 56, 62 (2012); see also Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009) (discussing 38 C.F.R. §§ 4.1 and 4.2 and stating that, although the veteran was only entitled to disability compensation for the period after the date he filed his original claim for benefits," VA regulations still require the disability to be "evaluated in light of its whole recorded history. Therefore, the Board has also considered and reviewed the Veteran's entire history when assigning a disability evaluation in the present case. 38 C.F.R. § 4.1. Thus, the Board will focus on the evidence of record from August 2012 to the present, in adjudicating the increased rating claim at issue. Consideration must be given as to whether staged ratings should be assigned to compensate entitlement to a higher rating at any point during the pendency of the claim. When the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). The Board may consider many factors when assessing the credibility and weight of lay evidence, including statements made during treatment, self-interest or bias, internal consistency, and consistency with other evidence. Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Bostain v. West, 11 Vet. App. 124, 127 (1998). The Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In increased rating claims, a Veteran's lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010). The Veteran is uniquely suited to describe the severity, frequency, and duration of his service-connected degenerative arthritis of the spine. See Falzone v. Brown, 8 Vet. App. 398 (1995); Heuer v. Brown, 7 Vet. App. 379 (1995). While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). Equal weight is not given to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either scenario, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Increased ratings for Degenerative Arthritis of the Spine VA received the Veteran’s claim for increased rating for lumbar strain with arthritis in August 2013. The Veteran's degenerative arthritis of the spine has been rated under Diagnostic Code 5242 as 10 percent prior to July 12, 2018; 20 percent from July 12, 2018; and 40 percent effective January 20, 2020. Lumbar spine disabilities are rated under Diagnostic Codes 5235-5242. Under Diagnostic Code 5237, a rating of 10 percent is warranted with 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 fraction with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, Diagnostic Code 5237. A rating of 20 percent is warranted with 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 not greater than 120 degrees; or, severe enough 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 rating of 40 percent is warranted with unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A higher rating of 50 percent is warranted with unfavorable ankylosis of the entire thoracolumbar spine. Id. A maximum rating of 100 percent is warranted with unfavorable ankylosis of the entire spine. Id. For VA purposes, unfavorable ankylosis is a condition in which 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, Diagnostic Code 5237, Note (5). These criteria are to be applied regardless of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, id., as the criteria "are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine." 68 Fed. Reg. 51,455 (August 27, 2003). The General Rating Formula for Diseases and Injuries of the Spine permits evaluation under either the General Rating Formula for Diseases and Injuries of the Spine or 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 Code 5243. In this case, the Board finds that higher evaluations are not generated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes as the VA treating physicians and examiners have not diagnosed the Veteran with Intervertebral Disc Syndrome and the Veteran has not reported incapacitating episodes in which a physician has ordered bed rest. Therefore, consideration under Diagnostic Code 5243 is not warranted. When evaluating diseases and injuries of the spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1). A) Entitlement to increased rating in excess of 10 percent prior to July 12, 2018 While in service the Veteran was seen for reoccurring sharp, constant low back pain beginning in 1984 that was intermittent but typically resulted in one episode of back pain per week. A review of VA treatment records reflects that the Veteran presented in January 2012 complaining of back pain for many years that radiated to her thigh on the left side and from her back towards her vagina. In August 2013 the Veteran complained specifically of back pain that had increased over the last couple of weeks which she aggravated by walking in the sand at the beach. The Veteran also noted that she had increased the incline on the treadmill at the gym. Lumbar spine x-rays on that date were compared to December 2006 x-rays which showed progression of degenerative endplate changes and facet sclerosis for a diagnosis of moderate spondylosis of the lumbar spine. At the Veteran’s annual physical in April 2014 she noted that she was doing well except for chronic back pain which was well-controlled with icy hot patches which decreased her need for pain medication. The Veteran was afforded a Back Conditions examination in June 2014 which confirmed diagnoses of lumbosacral strain and degenerative arthritis of the spine. The VA examiner reviewed the claims file; considered the Veteran's subjective impressions; and conducted a clinical examination. The Veteran was not diagnosed with Intervertebral Disc Syndrome. She gave a history of more persistent aching with problems sleeping due to back pain and stiffness in the morning. Physical therapy, icy hot, a lumbar roll for her chair and muscle relaxants all helped some. Upon examination the Veteran demonstrated 85 degrees of forward flexion and 25 degrees of extension without objective evidence of painful motion. She was able to perform repetitive use testing with at least 3 repetitions without additional limitation of range of motion in any vector. There was no evidence of tenderness to palpation, spasm, guarding or abnormal gait or abnormal spinal contour of the thoracolumbar spine. Neither lower extremity was affected by radicular pain. The examiner noted that the Veteran’s back condition did not impact her ability to work as a credit counselor noting that she had no deformity, mal-alignment, painful or abnormal movement, guarding, fatigue, lack of endurance, weakness, atrophy, incoordination, instability or abnormal weight-bearing. The examiner declined to opine as to a loss of function due to flare-ups or repetitive use. In a March 2017 visit the Veteran reported her pain level as 0. In a January 2018 comprehensive visit the Veteran reported chronic back pain at a pain level of 1 to 3 out of 10. As noted above in the VA Schedule for Rating Disabilities, in order to warrant a higher 20 percent disability rating prior to June 12, 2018 under Diagnostic Code 5242 for degenerative arthritis of the spine, the Veteran would need to demonstrate arthritic involvement of 2 or more joints with incapacitating exacerbations. While the lumbar spine is a group of minor joints, there was no evidence of incapacitating episodes prior to June 12, 2018. See 38 C.F.R. § 4.45. A higher rating under Diagnostic Code 5237 would require less than 60 degrees of lumbar flexion. The evidence of record during flare-ups of the Veteran’s back pain or repetitive use after walks on the beach or use of gym equipment did not result in orthopedic evaluation or documentation of limited range of motion of less than 60 degrees of forward flexion. The medical findings fall, at the worst, within the criteria for a 10 percent disability rating. The Board acknowledges the Veteran’s sincere belief that her back pain symptoms were more severe than the 10 percent disability rating contemplates prior to June 5, 2018. The Veteran is competent to report her pain and other back symptoms. See Falzone, supra. However, the Veteran has not shown that she has the highly specialized medical education and training in assessing the anatomic interrelationship of body mechanics and therefore, the Board assigns the treating physicians and the objective measurements and opinions of the VA examiners great probative weight. In sum, the Board finds that the Veteran’s degenerative arthritis of the spine at its worst, most nearly approximated a disability rating of 10 percent prior to July 12, 2018. Accordingly, an increased disability rating in excess of 10 percent prior to July 12, 2018 is not warranted. A) Entitlement to increased rating in excess of 20 percent prior to January 20, 2020 In a September 2018 rating decision and SSOC the evaluation of the Veteran’s degenerative arthritis of the spine, which had been rated at 10 percent disabling, was increased to 20 percent disabling effective July 12, 2018. In October 2018, VA received the Veteran’s Form 9 including her statement in which she indicated, in pertinent part, that the measurements of range of motion had nothing to do with her constant pain including pain and numbness going down her leg. Review of the VA treatment records reflects a July 2018 visit for several medical conditions, in which the Veteran gave a history of chronic back pain, occurring off and on, for which she took Ibuprofen at night. The Veteran was also afforded a VA Back examination in July 2018 in which the VA examiner reviewed the claims file; considered the Veteran's subjective impressions; and conducted a clinical examination. This examiner confirmed a diagnosis of lumbar strain with arthritis as of July 2018. The Veteran disclosed that she had experienced continued back pain over the last 18 months for which she was treated at the VA and by a civilian doctor. She reported starting a new medication in the past 2 months and having physical therapy. The Veteran described constant dull aching pain in the lower back with stiffness after sitting for prolonged periods such as hour-long car rides. She also acknowledged worsening pain with repetitive movements such as washing dishes, mopping floors, doing yard work or walking on uneven surfaces. Upon examination, the Veteran’s initial range of motion was abnormal with 35 degrees of forward flexion which contributed to her difficulties with bending and performing twisting movements. There was no evidence of localized tenderness of spasm, however, there was pain noted on examination, pain with weight bearing, evidence of muscle spasm resulting in an abnormal gait, but no additional loss of function or range of motion after three repetitions of range of motion. The examiner declined to state whether there would be additional loss of range of motion with flare-ups. The Veteran did not report any flare-ups but noted up to one week of lost time from work in the last 12 months and difficulty with concentration due to medication taken for back pain. There was no ankylosis or intervertebral disc syndrome. In December 2018, the Veteran presented for treatment describing her back pain as at the 8/10 level. January 2019, the Veteran was using a TENS unit and undergoing physical therapy for back pain which was noted as a chronic problem off and on. Private treatment records include the Veteran’s visits in September through December 2019 in which the physician noted tenderness of the thoracic spine with a mildly reduced range of motion. Her pain ranged from 5 to 8 /10. Upon examination by the physical therapist, the Veteran’s lumbar range of motion was within normal limits, with very painful flexion and rotation. The physical therapist’s goal was lumbar range of motion within normal limits without pain at the end of the range of motion. The Veteran’s lumbar derangement was responding quickly to repeated movement with improved range of motion and flexion. At the end of a six-week therapy regimen, the physical therapist noted that her lumbar range of motion was within normal limits with minimal pain. As noted above, for the Veteran to warrant a higher evaluation of 40 percent disability, the Veteran would need to demonstrate forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Such was not evident. Accordingly, the Board finds that the most probative lay and medical evidence of record indicates that a disability evaluation of greater than 20 percent is not warranted. B) Entitlement to disability rating in excess of 40 percent from January 20, 2020 The Veteran underwent a VA Back conditions examination on January 20, 2020. She reported worsening of her back pain within the last year causing her marital and employment difficulties. The Veteran rated her throbbing low back pain as productive of a pain level of 8/10 with increased pain with lifting, twisting, and prolonged sitting or standing. She also noticed intermittent shooting pain radiating from her lower back to right buttock, hip and thigh with mild numbness and tingling. The Veteran has been prescribed a back brace which she wears regularly and takes Celebrex daily to treat her pain symptoms. The Veteran denied flare-ups of her symptoms. Functionally, she is limited in standing and sitting for prolonged periods of time as well as bending, twisting, pushing, pulling and lifting. Upon examination the Veteran demonstrated grimacing as objective evidence of her pain with an abnormal range of motion of 30 degrees of flexion, and 10 degrees of extension, right and left lateral flexion, and right and left lateral rotation. She had pain with weight-bearing. The Veteran was observed testing at least three repetitions without additional loss of function or range of motion. Muscle spasm of the spine resulting in an abnormal gain or abnormal spine contour was also observed. The examiner endorsed evidence of diminished sensation throughout the Veteran’s legs, a negative straight leg raising test for both legs, and intermittent mild pain and paresthesias of the right leg only. Ankylosis or intervertebral disc syndrome were not diagnosed. Passive range of motion was not performed as it was deemed to be clinically contraindicated. As the Veteran’s job as a financial counselor requires lifting and moving heavy boxes, she reports leaving work frequently and missing two days in the last 12 months due to back pain. The Board notes the Veteran’s hearing testimony regarding her symptoms and the impact they have on her everyday life and work. The Veteran testified that she suffers from constant pain in her lower back that radiates into her thighs and make it difficult to sit for long periods of time. Furthermore, the Veteran testified that she has experienced flareups which have made her seek medical help for relief. The Veteran additionally stated that she was not adequately examined regarding her range of motion as she was not given clear instructions when tested. The Veteran reported additional symptoms such as frequent urination, numbness going down her thighs, and fogginess during the workday which she attributes to the medication she takes for the pain. A higher evaluation of 50 percent is not warranted for degenerative arthritis of the spine unless the evidence shows unfavorable ankylosis which, as noted above, is defined as 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 and other signs and symptoms, none of which are evident in this case. The Board finds the examination report of the VA examiner which reflects a review of the Veteran’s electronic file, an-person examination and consideration of the Veteran’s subjective statements, to be highly probative. The RO issued a separate rating for the Veteran’s radicular symptoms following the report. Accordingly, the Board finds that the most probative lay and medical evidence of record indicates that a disability rating greater than 40 percent for degenerative arthritis of the spine is not warranted. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Adams Hill, 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.