Citation Nr: 21012603 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 17-29 581 DATE: March 4, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for degenerative joint disease (DJD) of the lumbar spine is denied. FINDING OF FACT The Veteran’s DJD of the lumbar spine manifests as forward flexion limited to 35 degrees, with no ankylosis. CONCLUSION OF LAW The criteria for an initial rating in excess of 20 percent for DJD of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code (DC) 5242 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2003 to May 2009. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in December 2019. A transcript of the hearing is associated with the electronic claims file. The Board issued a prior remand on this claim in January 2020. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.     Pertinent regulations also provide that it is not necessary for all of the individual criteria to be present as set forth in the Rating Schedule, but that findings sufficient to identify the disability and level of impairment be considered. 38 C.F.R. § 4.21. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.     When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Id. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.    The Veteran’s lumbar spine DJD is rated under DC 5242 for degenerative arthritis of the spine, which falls under the general rating formula for diseases and injuries of the spine.  Under 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, for ratings for the thoracolumbar 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 assigned if there is forward flexion of the thoracolumbar spine of 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating is assigned if there is unfavorable ankylosis of the entire thoracolumbar spine. Finally, a 100 percent rating may be assigned if there is unfavorable ankylosis of the entire spine.   For VA compensation purposes, 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 thoracolumbar spine is 240 degrees.  1. Entitlement to an initial rating in excess of 20 percent for DJD of the lumbar spine. In March 2013, the Veteran filed an application for service connection for chronic back pain. In a September 2016 rating decision, the RO granted service connection for degenerative arthritis of the lumbar spine, evaluated at 10 percent, effective March 14, 2013, the date of the Veteran’s initial claim. This rating was based on a July 2016 VA examination, wherein the examiner found the Veteran’s forward flexion to be limited to 65 degrees, and a total combined range of motion of the thoracolumbar spine to be 200 degrees; both consistent with a 10 percent rating under DC 5242. The Veteran appealed this evaluation up to the Board. At his December 2019 Board hearing, the Veteran testified that on the day of his examination he was not having a bad day, but still would not have been able to complete the forward flexion to 65 degrees without pain. Moreover, the Veteran testified to having bad days where he cannot get out of bed or move and has had to miss days of work or leave early due to pain. In January 2020, the Board remanded the claim instructing the RO to provide the Veteran with another VA examination consistent with recent caselaw. The Veteran was given another VA examination in February 2020. Here, the examiner diagnosed the Veteran with DJD and degenerative disc disease of the lumbar spine. The examiner noted that the Veteran reported that his back pain was increasing, but denied any radiation of pain into the hips, buttocks, or legs and reported no flareups. The examiner found the Veteran’s forward flexion to be limited to 85 degrees and his combined range of motion for the thoracolumbar spine to be 205 degrees. The examiner noted pain on exam that does not result in or cause functional loss. However, the examiner opined that pain, weakness, fatigability, or incoordination significantly limited the Veteran’s range of motion with repeated use over time, estimating that his forward flexion would be limited to 35 degrees, and his combined range of motion for the thoracolumbar spine would be limited to 140 degrees. The Board notes that this range of motion is consistent with a 20 percent rating under DC 5242. In July 2020, the RO issued a rating decision increasing the Veteran’s DJD of the lumbar spine’s evaluation to 20 percent, effective March 14, 2013, the date of his initial claim. As noted above, in order to be eligible for the next higher rating of 40 percent, the Veteran would have to show forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A review of the record does not support either finding. Moreover, neither the Veteran nor his representative has provided any further argument in support of a higher rating for his DJD of the lumbar spine. Accordingly, entitlement to an initial rating in excess of 20 percent for DJD of the lumbar spine is denied. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Ruiz, 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.