Citation Nr: 21011611 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 14-34 123 DATE: March 2, 2021 ORDER A rating in excess of 40 percent for lumbar degenerative disc disease with intervertebral disc syndrome (IVDS) is denied. FINDING OF FACT For the entire appeal period, the Veteran’s lumbar degenerative disc disease with IVDS does not result in ankylosis, incapacitating episodes of IVDS, or associated objective neurological abnormalities other than radiculopathy of the right and left lower extremities. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent rating for lumbar degenerative disc disease with IVDS have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5242-5293 (in effect prior to and as of September 23, 2002); DCs 5242-5243 (in effect as of September 26, 2003). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from May 1971 to May 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in June 2013 by a Department of Veterans Affairs (VA) Regional Office. In July 2018, the Board remanded the case for additional development, and it now returns for further appellate review. The Board observes that, following the issuance of the April 2020 supplemental statement of the case, additional evidence, to include VA and private treatment records, was associated with the record. However, in February 2021, the Veteran, through his representative, waived Agency of Original Jurisdiction (AOJ) consideration of such evidence. 38 C.F.R. § 20.1304(c). Therefore, the Board may properly consider the entirety of the evidence of record. Entitlement to a rating excess of 40 percent for lumbar degenerative disc disease with IVDS. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found—a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 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 evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The Veteran’s lumbar spine disability is currently evaluated under DCs 5242—5243, which pertains to degenerative arthritis of the spine and IVDS, respectively, both of which are rated under the General Rating Formula for Diseases and Injures of the Spine. 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. Such provides that a 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Finally, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Note (1): Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. 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. 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. Note (4): Round each range of motion measurement to the nearest five degrees. 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. 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. IVDS may be evaluated under either the General Rating Formula or under the IVDS Rating Formula, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The IVDS Rating Formula provides that a 40 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71. The Veteran’s lumbar spine disability is currently rating as 40 percent disabling throughout the appeal period. To warrant a higher rating, the evidence must show unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine, or IVDS resulting in incapacitating episodes have a total duration of at least 6 weeks during the past 12 months. Here, the Board finds such are not demonstrated at any time during the appeal period. In that regard, the Veteran’s spine was not assessed as ankylosed, either in a favorable or unfavorable position, during his May 2013, April 2014, or June 2019 VA spinal examinations, nor has the Veteran, or any other medical professional, indicated that his spine is ankylosed. Likewise, while the Veteran’s range of back motion while limited, to include when further limited by pain, following repetitive testing, or during a flare-up, nevertheless demonstrate that he is capable of motion of the lumbar spine. Here, the Board notes that, VA treatment records dated throughout the appeal period demonstrate that the Veteran reported worsening back pain. However, he further reported trying to walk five and a half miles three days a week; and being more physically active through swimming, golfing, boating, fishing, and attending events at the local Elks Club. Indeed, all of the aforementioned VA examiners indicated that the Veteran had forward lumbar flexion limited to, at most, 40 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. Additionally, during the May 2013 VA examination he had 10 degrees of lumbar extension; 20 degrees of such during the April 2014 and June 2019 VA examinations; and bilateral lateral flexion and rotation during all examinations. Furthermore, private treatment records dated in April 2020 indicate that a muscular skeletal examination showed the Veteran had range of motion intact in all major joints; and VA treatment records dated that same month, and in July 2020, document the Veteran’s lumbar spine had no spinal tenderness, no costovertebral tenderness, and full range of motion. Moreover, the Veteran has not reported, and his medical records do not reflect, that he has experienced incapacitating episodes (meaning episodes of such severity so as to warrant the medical prescription of bed rest) of IVDS having a total duration of at least 6 weeks during any 12-month period at any point during the appeal period. The Board acknowledges the Veteran’s argument that the April 2014 VA examination was inadequate as such was not thorough. See September 2014 substantive appeal. However, the Board finds such argument to be without merit. Specifically, there is no indication that the examination was not objectively conducted, or the report contained inaccurate data. Here, the Board notes that there is a presumption of regularity under which it is presumed that government officials “have properly discharged their official duties.” United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). The Court has applied the presumption of regularity to “all manner of VA processes and procedures.” Woods v. Gober, 14 Vet. App. 214, 220 (2000). The presumption of regularity is not absolute; it may be rebutted by the submission of clear evidence to the contrary. However, statements made by a veteran, without more, do not constitute the type of clear evidence to the contrary which would be sufficient to rebut the presumption of regularity. Jones v. West, 12 Vet. App. 98 (1999); Midenhall v. Brown, 7 Vet. Ap. 271, 274 (1994). Thus, the Board finds that VA satisfied its duty to assist the Veteran. As to the neurological manifestations of the Veteran’s lumbar spine disability, the Board has considered whether he is entitled to separate, additional ratings for his radiculopathy of the right and left lower extremities (which are the only reported or clinically observed associated objective neurologic abnormalities). Such ratings would be in addition to the 40 percent rating already assigned under the pre-2002 version of DC 5243 – 5293. In this regard, the Board notes that, in a September 1999 rating decision, radiculopathy of the right and lower extremities was associated with the Veteran’s lumbar spine disability; and a single 40 percent rating was continued under the pre-2002 version of DC 5243, which considered both orthopedic and neurological manifestations combined. 38 C.F.R. § 4.71a (2001). Here, under DC 5293 (the criteria for rating IVDS that was in effect prior to and as of September 23, 2002), a 40 percent rating was warranted when the disability was severe, with recurring attacks and intermittent relief; and any neurologic manifestation of IVDS was evaluated as part of IVDS. Id. Subsequently, effective September 26, 2003, the regulations regarding diseases of an injuries to the spine, to include IVDS, were revised by the VA. As relevant, under the current September 2003 rating criteria for the lumbar spine, as noted previously, Note (1) of the General Rating Formula directs that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. See 38 C.F.R. § 4.71a (in effect after September 26, 2003). In this regard, the September 1999 VA examiner indicated that the Veteran had radiculopathy of both legs; and the examination report reflects that the Veteran’s muscle strength seemed to be good except for some slight decrease in strength in the quadriceps muscles bilaterally, that his deep tendon reflexes were equal bilaterally, and there some slight decrease in pinprick sensation over the legs. Furthermore, the May 2013 and April 2014 VA examiners determined that the Veteran had mild sciatic nerve radiculopathy of the bilateral lower extremities; and the June 2019 VA examiner indicated that the Veteran did not have radicular pain or any signs/symptoms due to radiculopathy. The Board finds that the aforementioned evidence demonstrates, at most, “mild” incomplete paralysis of the bilateral lower extremities pursuant to DC 8520 (sciatic nerve). Thus, the Board further finds that the Veteran is not entitled to separate, additional neurological ratings for his bilateral lower extremity radiculopathy for the entire appeal period as manifestations of a disability under multiple diagnoses (i.e., pyramiding) is to be avoided under 38 C.F.R. § 4.14. Here, the Veteran’s neurological symptoms in his bilateral lower extremities overlap under DCs 8520 and 5293; and such are already compensated by his existing 40 percent rating assigned under DC 5293. Accordingly, the same signs and symptoms cannot be used to support more than one evaluation. The Board notes that, in Bierman v. Brown, 6 Vet. App. 125 (1994), the United States Court of Appeals for Veterans Claims (Court) recognized that separate neurological ratings for impairment associated with a spine disability are not specifically prohibited by the VA regulations that were in effect in 2001. However, it is not clear what precise neurological effects the Court was referring to. Nevertheless, the Board does not interpret Bierman, supra, as permitting a claimant to be compensated twice for the same impairment in violation of the provisions of 38 C.F.R. § 4.14 (pyramiding). Moreover, the Board notes that the Veteran has a scar associated with his lumbar spine disability; however, such is asymptomatic, not of a size to warrant a compensable rating, or results in disabling effects. Specifically, the May 2013, April 2014, and June 2019 VA examiners noted that, while the Veteran had a scar associated with his lumbar spine disability, which was noted to measure 9 centimeters by 1 centimeter (May 2013 examination)/12 centimeters by 0.2 centimeters (June 2019 examination), such was not painful and/or unstable, affected a total area greater than 39 square centimeters, or resulted in any disabling effects. Therefore, a separate rating for such residual scar is not warranted. Thus, a rating in excess of 40 percent for the Veteran’s lumbar spine disability is not warranted. In reaching its conclusions, the Board acknowledges the Veteran’s belief his lumbar spine disability is more severe than as reflected by the current assigned rating. While the Board recognizes the Veteran is competent to report his symptoms, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Ultimately, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disabilities in light of the rating criteria to be more persuasive than his own reports regarding the severity of his service-connected disability. The Board has also considered whether staged ratings under Fenderson, supra, and/or Hart, supra, are appropriate for the Veteran’s service-connected lumbar spine disability; however, the Board finds that his symptomatology has been stable throughout the period on appeal. Therefore, assigning staged ratings for such disability is not warranted. Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the claims adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). In sum, the Board finds that he preponderance of the evidence is against an increased rating for the Veteran’s lumbar spine disability. Therefore, the benefit of the doubt doctrine is not applicable to the instant claim and his claim for an increased rating must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. K. STANTON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. M. Kelly, 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.