Citation Nr: 21012283 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 14-20 884 DATE: March 4, 2021 ORDER Entitlement to an evaluation in excess of 20 percent for degenerative arthritis of the lumbar spine is denied. FINDING OF FACT For the entire period, the Veteran’s degenerative arthritis of the lumbar spine did not manifest in functional loss equivalent to a forward flexion of the thoracolumbar spine of 30 degrees or less. There was no ankylosis of the entire thoracolumbar spine or incapacitating episodes resulting in doctor prescribed bed rest and treatment by a physician lasting four weeks or more in the past 12 months. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for degenerative arthritis of the lumbar spine were not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a; Diagnostic Codes (DC) 5237, 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service with the Army from January 1982 to April 1982. This matter is on appeal to the Board of Veterans’ Appeals (the Board) from July 2013 and the November 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2017, the Veteran testified in a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the evidence of record. The Board remanded the Veteran’s claims in December 2017 for additional development. In July 2018, the Board denied the Veteran’s claim for entitlement to an evaluation in excess of 20 percent for degenerative arthritis of the lumbar spine and entitlement to a TDIU. The Veteran subsequently appealed the July 2018 Board decision to the United States Court of Appeals for Veterans Claims (the Court). In a May 2019 order, the Court granted the parties Joint Motion for Remand (JMR), which vacated the Board’s July 2018 decision to deny his claim for an evaluation in excess of 20 percent for his degenerative arthritis of the lumbar spine and entitlement to a TDIU. The Court found the reasons and bases was inadequate. The Board needed to address the relative probative value of the private medical opinions of record compared with the VA opinions. Additionally, a new VA examination was necessary as the April 2018 examination was inadequate. The examiner did not provide an estimate for the Veteran’s range of motion during a flare-up or explain why an estimate could not be provided. Therefore, these claims were returned to the Board for readjudication consistent with the JMR. The Veteran underwent a new VA examination in October 2019. In March 2020, the Board remanded the Veteran’s claims again. Additional relevant evidence had been received after the issuance of the supplemental statement of the case (SSOC), therefore, the claims were remanded for agency of original jurisdiction (AOJ) review. The Veteran died in July 2020, prior to the Board’s adjudication of his appeal. In November 2020, the AOJ granted a request for substitution, and the appellant is now the Veteran’s surviving spouse. Additionally, the Board notes that the Veteran has separate appeals of entitlement to an increased rating for radiculopathy of the right lower extremity and somatic symptom disorder that were perfected and certified to the Board. However, the Veteran has requested a Board hearing on these issues, which has not yet been held. As such, the Board will not address these claims at this time, but they will be the subject of a subsequent Board decision once the Veteran’s hearing request has been fulfilled. Furthermore, a decision on the claim for TDIU must be deferred as that claim is intertwined with the pending claims for higher disability ratings. The Board notes that since the issuance of the November 2020 SSOC additional records were added to the claims file. The Veteran’s representative submitted the July 2015 lumbar spine impairment questionnaire completed by Dr. V.B. This opinion was previously associated with the claims file in November 2015. Therefore, the Board has concluded that it may proceed with appellate consideration of the Veteran’s claim for an evaluation in excess of 20 percent for his degenerative arthritis of the lumbar spine without prejudice to the Veteran. See 38 C.F.R. § 19.31. Entitlement to an evaluation in excess of 20 percent for degenerative arthritis of the lumbar spine is denied. Applicable Law and Regulations Under 38 C.F.R. § 4.71a, disabilities of the spine are rated under the General Formula for Diseases and Injuries of the Spine (General Formula). A 10 percent disability rating is warranted 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; 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 disability rating is warranted 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. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 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. Finally, a 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. In evaluating disabilities of the musculoskeletal system, it is necessary to consider whether a higher disability evaluation is warranted on the basis of functional loss due to pain, weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, 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. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). Factual Background The Veteran’s service-connected degenerative arthritis of the lumbar spine is assigned a 20 percent evaluation effective July 6, 2011, the date of his increased rating claim, under diagnostic code (DC) 5237. During an October 2011 VA examination, the Veteran reported he could walk on average half a mile in 30 minutes. He had spinal stiffness, spasms, and numbness. He reported moderate pain, fatigue, paresthesias, and weakness of the leg. However, he denied bowel problems. Range of motion testing showed forward flexion of 60 degrees, extension of 30 degrees, right lateral flexion of 30 degrees, left lateral flexion of 30 degrees, right lateral rotation of 30 degrees, and left lateral rotation of 30 degrees. Pain was noted during flexion at 60 degrees and during extension at 30 degrees. He could perform repetitive range of motion testing without additional limitation. He was not further limited my pain, fatigue, weakness, lack of endurance, or incoordination. There were no signs of intervertebral disc syndrome (IVDS). Imaging of the lumbar spine in July 2012 revealed multilevel degenerative disease. He had moderate degenerative disc disease at L4-5 and L5-S1, mild facet arthropathy at L4-5, and no evidence of acute fractures or subluxations. Physical examination found moderate tenderness of the spine, but that he retained full range of motion. He exhibited positive straight leg raise testing at 30 degrees. VA treatment records in November 2012 noted he was wearing a lumbar support and using a cane. He admitted he was not performing his strengthening exercises. By February 2013, he reported the back brace helped significantly. However, he was overwhelmed by his other medical problems and had difficulty focusing on his back exercises. In May 2013, A.C., the Veteran’s wife, submitted a statement. She reported they had been married for 31 years and that her husband had back pain for as long as they had been married. Some days he could not get out of bed. He had trouble walking when his back gave out. In addition to his back brace he used a cane or walker daily for long distances. In June 2013, the Veteran submitted a statement. He reported a flare-up would put him in bed for a week. He had to wear a back brace daily, could not engage in prolonged walking or sitting, and could not bend. The Veteran submitted a November 2013 lumbar spine impairment questionnaire completed by V.B. (MD), a private physician. V.B. reported treating the Veteran since July 2011. The examiner opined the Veteran had pain with forward flexion of 30 degrees or less. V.B. also found ankylosis of the entire thoracolumbar spine and that the Veteran had been prescribed bed rest for six weeks or more in the past 12 months due to IVDS. Physical examination found muscle spasms, sensory loss, muscle atrophy, positive straight leg raise testing on the left, an abnormal gait, crepitus, trigger points, and mild to moderate neuropathy. V.B. provided another lumbar spine impairment questionnaire in July 2015. V.B. opined the Veteran had pain with forward flexion of 30 degrees or less. He had no ankylosis of the thoracolumbar spine. There was evidence of muscle spasms, tenderness, abnormal gait, and positive straight leg raise testing at 40 degrees. The Veteran used a cane for ambulation and had moderate radiculopathy. He had been prescribed bed rest for four to six weeks or more in the past 12 months due to IVDS. VA treatment records from May 2016 revealed reports of worsening chronic back pain; however, he had not seen the orthopedist for a year. He reported a pain score of seven to eight that was constant, sharp, radiating, and worse with movement. He indicated occasional incontinence due to possible spastic colon, not his back condition. Imaging of the lumbar spine in November 2016 found mild spondylosis and disc space narrowing at L4-5 and S1, mild spondylosis and bulging at L4-L5 and L5-S1, mild spondylosis and facet arthropathy at L2-L3, mild spondylosis and facet arthropathy with minimal central stenosis at L3-L4, midline spondylosis and bulging slightly asymmetric to the right with moderate flattening of the anterior thecal sac at L4-L5, and central spondylosis and bulging to the left with mild flattening of the anterior epidural space at L5-S1. In March 2017, the Veteran testified to radiating pain with movement. He reported an inability to bend too far forward or backward. He had excruciating pain with twisting. Sitting for extended periods of time caused a throbbing sensation in the buttock region. He used a cane for ambulating short distances and a walker for longer distances. However, he had fallen two weeks prior to his hearing. The Veteran testified that due to pain and weakness he was unable to get out of bed three to four days a week. During an April 2018 VA examination, the Veteran reported he could not bend, walk, or stand for prolonged periods of time without increased back pain. He had a shooting pain from his low back into his right leg. He reported moderate flare-ups lasting two to four hours daily after sitting or standing in one position for a prolonged period. Initial range of motion testing found forward flexion of zero to 60 degrees, extension of zero to 20 degrees, right lateral flexion of zero to 25 degrees, left lateral flexion of zero to 25 degrees, right lateral rotation of zero to 25 degrees, and left lateral rotation of zero to 25 degrees. The examiner found obesity made it difficult for the Veteran to perform forward flexion. He exhibited pain with flexion, extension, and rotation. There was no evidence of pain with weight bearing. He performed repetitive use testing without additional functional loss or decreased range of motion after three repetitions. The examiner opined that the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time or during a flare-up. She was unable to say without mere speculation if pain, weakness, fatigability, or incoordination significantly limited him with repeated use over time or during a flare-up. The examiner found there was no conceptual or empirical basis for making such a determination without directly observing his functioning under these conditions. The examiner found no evidence of ankylosis of the spine or IVDS. His diabetes, gout, and back condition required constant use of a walker. Passive range of motion testing was not performed because it was not feasible to do in a safe and reasonable manner. There was no objective evidence of pain in the spine in a non-weight bearing position at rest. The examiner found an opposing joint assessment was not applicable to the spine because it does not have an opposing joint. In May 2018, O.W. (MD), a private physician, opined the Veteran had pain at 30 degrees forward flexion. Due to pain, he required use of a rolling walker when ambulating. Examination found tenderness, muscle spasms, sensory loss, muscle atrophy, muscle weakness, an abnormal gait, and swelling. Imaging of the lumbar spine in November 2018 revealed multilevel spondylosis that had progressed slightly overall. He reported pain preventing him from putting on his shoes and walking and/or standing. However, his clinical presentation was found stable and/or uncomplicated. During an October 2019 VA examination, the Veteran reported his condition had gotten worse since its onset. He currently experienced a constant dull achy back pain. His pain was exacerbated by prolonged sitting or standing. He was unable to walk for long periods. The Veteran denied flare-ups. Initial range of motion testing found a forward flexion of zero to 60 degrees, extension of zero to 20 degrees, right lateral flexion of zero to 20 degrees, left lateral flexion of zero to 20 degrees, right lateral rotation of zero to 20 degrees, and left lateral rotation of zero to 20 degrees. The examiner noted pain in flexion, extension, and rotation that did not cause functional loss. There was no evidence of pain with weight bearing, localized tenderness, or pain on palpation of the joint. He could perform repetitive use testing with at least three repetitions with no additional loss of function or decreased range of motion. He was not examined immediately after repetitive use over time. The examination was found medically inconsistent with Veteran's statements describing functional loss with repetitive use over time. He reported an inability to bend over or do anything due to his back. However, the examiner found he had decreased range of motion due to his obesity as well as the suboptimal effort given during the examination, not his lumbar arthritis. The examiner noted the Veteran sat in chair with 90 degrees range of motion during the 20-minute interview portion of examination and noted no pain. Pain, weakness, fatigability, and incoordination did not significantly limit his functional ability with repeated use over time. Based on the October 2019 examiner’s clinical knowledge and expertise, review of the record, and consideration of the Veteran’s subjective complaints as well as objective examination findings, there was no basis to note additional loss of function or range of motion with regard to repeated use over time. The examination was not conducted during a flare-up and was found neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during a flare-up. An estimate of his range of motion during a flare-up was not provided because the Veteran denied flare-ups. Physical examination found decreased strength and sensation. There was no evidence of ankylosis or IVDS. The examiner opined that multiple conditions could affect his muscle strength, sensation, and ambulation in addition to his lumbar arthritis including gout, diabetes mellitus, diabetic neuropathy, and diabetic foot ulcer. The Veteran exhibited abnormal muscle strength and range of motion on examination due to suboptimal effort and obesity. His sensory abnormalities were due to neuropathy and not radiculopathy. The Veteran used a walker for ambulation because of his gout and diabetes with neuropathy. Passive range of motion testing was not performed because it was not feasible to do in a safe and reasonable manner. There was no objective evidence of pain in the spine in a non-weight bearing position at rest. The examiner found an opposing joint assessment was not applicable to the spine because it does not have an opposing joint. Analysis The Board finds the Veteran’s current 20 percent evaluation adequately portrays any functional impairment, pain, and limitation of motion that the Veteran experienced due to his degenerative arthritis of the lumbar spine. The Board considered the effect of pain, weakness, and incoordination in evaluating the Veteran's disability. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. Throughout the record he reported chronic low back pain, stiffness, and muscle spasms. He reported his pain was aggravated by prolonged walking or sitting, twisting, and bending over. A.C., the Veteran’s wife, opined there were days her husband could not get out of bed due to pain, and that he had trouble walking when his back gave out. Both the Veteran and his wife are competent to report his medical history and symptomatology, including pain. Competent lay evidence is any evidence that does not require the proponent to have specialized education, training, or experience. However, these opinions not accorded greater probative weight than the VA examiner regarding a complex medical question. 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). There is no evidence of record indicating that his forward flexion was limited to 30 degrees or less, nor is there evidence of ankylosis or symptoms so severe as to be the functional equivalent of ankylosis. During his October 2011 VA examination, the Veteran exhibited a forward flexion of 60 degrees and a combined range of motion of the thoracolumbar spine of 210 degrees. Pain was noted during flexion at 60 degrees and during extension at 30 degrees. However, he could perform repetitive range of motion testing without additional limitation. He was not further limited by pain, fatigue, weakness, lack of endurance, or incoordination. There was no sign of IVDS. In December 2017, the Board remanded the Veteran’s claim because a new VA examination was warranted. The Veteran testified during his March 2017 hearing that his back condition had gotten worse. Additionally, the October 2011 examination does not comply with the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016). Therefore, this opinion was accorded little probative weight. V.B., the Veteran’s private physician, opined in November 2013 that the Veteran had pain with forward flexion of 30 degrees or less. V.B. also found ankylosis of the entire thoracolumbar spine and that he had been prescribed bed rest for six weeks or more in the past 12 months due to IVDS. V.B. found evidence of muscle spasms, sensory loss, muscle atrophy, positive straight leg raise testing on the left, an abnormal gait, crepitus, trigger points, and mild to moderate neuropathy. In July 2015, V.B. provided another opinion on the Veteran’s lumbar spine impairment. V.B. opined the Veteran had pain with forward flexion of 30 degrees or less. He had no ankylosis of the thoracolumbar spine. There was evidence of muscle spasms, tenderness, abnormal gait, and positive straight leg raise testing. The Veteran used a cane for ambulation and had moderate radiculopathy. He had been prescribed bed rest for four to six weeks or more in the past 12 months due to IVDS. The Board notes the finding of pain with flexion at 30 degrees or less as well as physical findings such as muscle spasm and tenderness. However, the opinion does not show that the Veteran’s flexion was limited to 30 degrees or less, or that pain experienced before or at 30 degrees resulted in functional loss. V.B.’s finding of pain with flexion contradicts his November 2013 diagnosis of ankylosis. Furthermore, the greater weight of evidence does not support a finding that the Veteran had ankylosis or IVDS requiring prescribed bed rest for four to six weeks or more in the past 12 months. During his April 2018 VA examination, the Veteran exhibited a forward flexion of 60 degrees and a combined range of motion of the thoracolumbar spine of 180 degrees. The examiner found obesity made it difficult for the Veteran to perform forward flexion. He exhibited pain with flexion, extension, and rotation. There was no evidence of pain with weight bearing. He performed repetitive use testing without additional functional loss or decreased range of motion after three repetitions. The examiner opined that the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time or during a flare-up. She was unable to say without mere speculation if pain, weakness, fatigability, or incoordination significantly limited him with repeated use over time or during a flare-up. The examiner found there was no conceptual or empirical basis for making such a determination without directly observing his functioning under these conditions. The April 2018 examiner found no evidence of ankylosis of the spine or IVDS. His diabetes, gout, and back condition required constant use of a walker. Passive range of motion testing was not performed because it was not feasible to do in a safe and reasonable manner. There was no objective evidence of pain in the spine in a non-weight bearing position at rest. The examiner found an opposing joint assessment was not applicable to the spine because it does not have an opposing joint. In a May 2019 order, the Court found a new VA examination was necessary as the April 2018 examination was inadequate. The examiner did not provide an estimate for the Veteran’s range of motion during a flare-up or explain why an estimate could not be provided. Therefore, this opinion was given little probative weight. In May 2018, O.W., the Veteran’s private physician, opined he had pain at 30 degrees forward flexion. Due to pain, he required use of a rolling walker when ambulating. Examination found tenderness, muscle spasms, sensory loss, muscle atrophy, muscle weakness, an abnormal gait, and swelling. The Board notes the finding of pain with flexion at 30 degrees or less as well as physical findings such as muscle spasm, tenderness, swelling, etc. However, the opinion does not show that the Veteran’s flexion was limited to 30 degrees or less, or that pain experienced before or at 30 degrees resulted in functional loss. Therefore, this opinion was given little probative weight. During his October 2019 VA examination, the Veteran exhibited a forward flexion of 60 degrees and a combined range of motion of the thoracolumbar spine of 160 degrees. The examiner noted pain in flexion, extension, and rotation that did not cause functional loss. There was no evidence of pain with weight bearing, localized tenderness, or pain on palpation of the joint. He could perform repetitive use testing with at least three repetitions with no additional loss of function or decreased range of motion. He was not examined immediately after repetitive use over time. The examination was found medically inconsistent with Veteran's statements describing functional loss with repetitive use over time. He reported an inability to bend over or do anything due to his back. However, the examiner found he had decreased range of motion due to his obesity as well as the suboptimal effort given during the examination, not his lumbar arthritis. The examiner noted the Veteran sat in chair with 90 degrees range of motion during the 20-minute interview portion of examination and did not report pain. Pain, weakness, fatigability, and incoordination did not significantly limit his functional ability with repeated use over time. Based on the October 2019 examiner’s clinical knowledge and expertise, review of the record, and consideration of the Veteran’s subjective complaints as well as objective examination findings, he found no basis to find additional loss of function or range of motion with regard to repeated use over time. The examination was not conducted during a flare-up and an estimate of his range of motion during a flare-up was not provided because the Veteran denied flare-ups. Physical examination found decreased strength and sensation. There was no evidence of ankylosis or IVDS. The examiner opined that multiple conditions could affect his muscle strength, sensation, and ambulation in addition to his lumbar arthritis including gout, diabetes mellitus, diabetic neuropathy, and diabetic foot ulcer. The Veteran exhibited abnormal muscle strength and range of motion on examination due to suboptimal effort and obesity. His sensory abnormalities were due to neuropathy and not radiculopathy. The Veteran used a walker for ambulation because of his gout and diabetes with neuropathy. Passive range of motion testing was not performed because it was not feasible to do in a safe and reasonable manner. There was no objective evidence of pain in the spine in a non-weight bearing position at rest. The examiner found an opposing joint assessment was not applicable to the spine because it does not have an opposing joint. The October 2019 VA examination was highly probative evidence, as it relied on sufficient facts and data, and provided a rationale for the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Hence, the probative evidence weighed against finding the Veteran’s degenerative arthritis of the lumbar spine was entitled to an evaluation in excess of 20 percent. DC 5243 is not applicable in the present case. The Board notes that the November 2013 examination diagnosed ankylosis; however, in July 2015, the same provider opined there was no ankylosis present. Furthermore, the Board finds that the record does not otherwise support the examiner’s notation of bed rest and diagnosis of IVDS. As was discussed in detail above, the VA treatment records and examinations contradict this finding. The Board finds that the conclusion of V.B. are outweighed by the other medical evidence of record. The Board concludes that the Veteran is entitled to a 20 percent rating for degenerative arthritis of the lumbar spine. He had thoracolumbar forward flexion to 60 degrees. VA examiners did not find evidence of ankylosis or IVDS. The record supports a finding that a 20 percent rating adequately portrays his functional impairment due to his degenerative arthritis of the lumbar spine. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.L. Byers 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.