Citation Nr: 21012315 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-40 622 DATE: March 4, 2021 ORDER Entitlement to a rating in excess of 20 percent for lumbar spine disability (hereinafter back disability) is denied. FINDING OF FACT The Veteran’s service-connected back disability is not shown to be manifest by forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 20 percent for a back disability have not been met. 38 U.S.C. §§ 1155, 5107; Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1989 to March 1993. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a February 2014 rating decision of the Augusta, Maine, Regional Office (RO) of the Department of Veterans Affairs (VA). This claim was previously before the Board in August 2018 and July 2019, at which time it was remanded for additional development. An addendum medical opinion was obtained and therefore the Board finds there was substantial compliance with the Board remand directives. This is the only issue on appeal. The Veteran contends that he is entitled to a higher rating because his back disability is worse than the assigned disability rating reflects. The Veteran’s back disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242 for degenerative disc disease of the lumbar spine. As of February 7, 2021, the Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, was amended. Diagnostic Code 5242 has been amended to include degenerative arthritis; degenerative disc disease other than intervertebral disc syndrome. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5242. The Veteran has also been diagnosed with intervertebral disc syndrome. See March 2019 VA Examination. Diagnostic Code 5243 has been amended to assign Diagnostic Code 5243 only when there is disc herniation with compression and/or irritation of the adjacent nerve root. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5243. Furthermore, the amendment states to assign diagnostic code 5242 for all other disc diagnoses. Id. The Veteran’s back disability has shown mild disc desiccation and a small central disc herniation at L2-L3, indenting the ventral sac and causing moderate spinal canal stenosis without nerve root compression. See, e.g., December 2014 Northport VAMC, Physical Medicine Rehab Note. Therefore, Diagnostic Code 5242 for degenerative disc disease remains the appropriate diagnostic code because the Veteran does not have disc herniation with compression. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for 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 fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the 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 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. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. As a preliminary manner and in substantial compliance with the July 2019 remand directives, an addendum opinion was obtained to provide a retroactive opinion with regards to whether the results of the May 2014 VA examination would have been reduced if tested in both active and passive motion and in weight bearing and non-weight bearing. The examiner reviewed the medical records and found no consistent documentation in the form of ROM measurements during active and passive motion nor with weight or non-weight bearing to determine if ROM on the May 2014 exam would have been reduced. See October 2020 Addendum Opinion. Furthermore, an estimation would be inappropriate due to situational examination findings that might not have been reported on that day and may affect any estimated loss of ROM during passive ROM testing, weight bearing and non-weight bearing pain determinations. Id. The examiner stated it would merely be speculation to state that someone 6 years ago had pain when this information was not elicited from the Veteran at the time of evaluation. Id. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the Veteran’s back disability. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to difficulty walking and standing for long periods of time. See March 2019 VA Examination. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. In fact, the Veteran’s initial ROM measurements were noted as normal, with forward flexion to 90 degrees. See id. Pain was noted on examination but did not result in or cause additional functional loss. Id. Additional loss of function or range of motion after three repetitions was not found and flare-ups were not reported. Id. Additionally, there was no ankylosis of the spine. The Board notes that range of motion for both active and passive motion and in weight bearing and non-weight bearing were not provided in the March 2019 VA examination. However, because the Veteran’s initial range of motion was noted as normal, a remand would delay the full adjudication of this case. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Regarding neurological impairment, the Veteran has already been granted service connection for left leg radiculopathy and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. In this regard, the Board must note that a 20 percent rating will cause the Veteran many problems. Accordingly, the Board finds that a disability rating in excess of 20 percent for a back disability is not warranted. The Board finds that the preponderance of the evidence is against the assignment higher rating. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura Cochran, 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.