Citation Nr: 21011419 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 11-25 768 DATE: March 1, 2021 ORDER Entitlement to a higher initial rating in excess of 20 percent for the lumbar spine degenerative disc disease (DDD) and facet arthrosis (hereinafter referred to as lumbar DDD) from September 14, 2010 to June 13, 2016 is denied. REMANDED Service connection for a bilateral hip disability, including as secondary to the service-connected lumbar spine DDD, is remanded. FINDING OF FACT From September 14, 2010 to June 13, 2016, the lumbar DDD did not manifest in favorable or unfavorable ankylosis, or forward flexion less than 30 degrees. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 20 percent for the service-connected DDD in the lumbar spine from September 14, 2010 to June 13, 2016 are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1965 to June 1968. This matter is on appeal from a December 2010 rating decision issued by the Regional Office (RO) in Lincoln, Nebraska. This case involves a long procedural history which the Board will abbreviate for the sake of brevity. In February 2018, the Board denied service connection for a bilateral hip disorder, which was appealed to the United States Court of Appeals for Veterans Claims (Court). In September 2018, the Board granted a higher initial rating of 20 percent for the lumbar DDD from September 14, 2010 to June 13, 2016. In an August 2019 memorandum decision, the Court concluded that, in the February 2018 Board decision, the Board did not provide an adequate statement of reasons or bases for relying on the November 2014 and July 2016 VA examinations to deny service connection for a bilateral hip condition. Both examiners based their “less likely than not” conclusions on x-rays that revealed similar hip deterioration bilaterally, yet both examiners acknowledged that the Veteran subjectively reported pain that was considerably worse on the left side. The Court vacated this issue and remanded it back to the Board. In April 2020, the Board remanded the instant two issues in order to obtain additional medical treatment records and schedule VA examinations. VA examinations were conducted in May, July, and December of 2020. Duties to Notify and Assist The Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Legal Authority for Disability Ratings Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243), unless Diagnostic Code 5243 is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a. Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Under the General Rating Formula, a 10 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; 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. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; 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. 38 C.F.R. § 4.71a. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine at 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Id. The General Formula for Diseases and Injuries of the Spine also, in pertinent part, provide the following Notes: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. Id. Note (4): Round each range of motion measurement to the nearest five degrees. Id. Note (5): 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Id. For disabilities of the musculoskeletal system, the Board also considers whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 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. Although pain may cause a functional loss, pain itself does not constitute functional loss. Pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 1. Rating the Lumbar Spine DDD from September 14, 2010 to June 13, 2016 The Veteran is in receipt of a 20 percent rating for the DDD in the lumbar spine from September 14, 2010 to June 13, 2016 under DC 5242 based on evidence of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. After a review of all the lay and medical evidence of record, the Board finds that for the rating period from September 14, 2010 to June 13, 2016, even with considerations of limitations of motion and function due to pain and orthopedic factors, the thoracolumbar spine did not manifest in favorable or unfavorable ankylosis or forward flexion less than 30 degrees. At the October 2010 VA examination, the Veteran reported pain, flare ups every 2 to 3 weeks lasting 1 to 2 days, and difficulty bending, lifting, getting out of bed, kneeling, and standing or sitting for prolonged periods of time. The VA examiner measured forward flexion at 70 degrees and found that the Veteran did not have ankylosis. The Veteran submitted July 2011 private treatment records that show forward flexion of the thoracolumbar spine limited to 70 degrees. In December 2011, a VA examination addendum opinion was issued. While the addendum opinion did not include current range of motion measurements, findings of ankylosis, or reports of functional loss associated with the thoracolumbar spine, it did note that the Veteran had a medical history of “spontaneous ankylosis” at L3-L4, which was documented in 2001 medical treatment records. The Board notes that the “spontaneous ankylosis” notation is from 2001 and does not demonstrate that the Veteran had ankylosis during the period on appeal from September 14, 2010 to June 13, 2016. At the November 2014 VA examination, the Veteran reported stiffness and tightness in the lower back. The VA examiner measured forward flexion at 80 degrees and did not find ankylosis. The VA examiner could not give opinions as to 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 because the Veteran did not experience a flare up when the examination was conducted. In December 2015, the Veteran submitted to a VA examination. The Veteran reported pain, decreased mobility, and decreased range of motion, all of which were worse during a flareup. The VA examiner measured forward flexion at 55 degrees (at initial testing and after observed repetitive use) and did not find ankylosis. The VA examiner could not give opinions as to 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 because the Veteran did not experience a flare up when the examination was conducted. In consideration of the foregoing, the Board finds that, under the facts of this case, from September 14, 2010 to June 13, 2016, the thoracolumbar spine did not manifest in favorable or unfavorable ankylosis or forward flexion less than 30 degrees, even considering reported the functional loss due to reported pain; therefore, a higher rating than 20 percent under DC 5242 is not warranted for the period on appeal. 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 2. Service connection for a bilateral hip disability, including as secondary to the service-connected lumbar DDD, is remanded. The Veteran contends that the bilateral hip disability is related to service and/or is secondary to the service-connected lumbar spine DDD. The evidence shows a current bilateral hip disability, diagnosed as osteoarthritis. See November 2014 VA Examination. Upon review of the record, VA examination opinions were rendered in November 2014 and May 2020. These opinions addressed the Veteran’s contentions about direct service connection and secondary service connection based on causation, but the VA examiners did not render a secondary service connection opinion based on aggravation (opining as to whether the bilateral hip disability was worsened in severity by the service-connected spine DDD). Accordingly, the Board finds that an addendum opinion is warranted. The matter is REMANDED for the following action: Obtain a VA addendum opinion for the bilateral hip disability. After a review of the record, the VA examiner should offer the below opinions: Is it at least as likely as not (i.e., probability of 50 percent or more) that the left hip disability was aggravated by (worsened in severity beyond a normal progression by) the service-connected lumbar DDD? (Continued on the next page)   Is it at least as likely as not (i.e., probability of 50 percent or more) that the right hip disability was aggravated by (worsened in severity beyond a normal progression by) the service-connected lumbar DDD? J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Costantino, 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.