Citation Nr: 21013653 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 15-36 452 DATE: March 10, 2021 ORDER Entitlement to an initial evaluation in excess of a 10 percent rating for degenerative change at L4-5 and low back injury, is denied. FINDING OF FACT For the entire period on appeal, the Veteran's degenerative arthritis of the lumbar spine is manifested by pain and limitation of motion; objective findings include flexion to 65 degrees, and intervertebral disc syndrome (IVDS) without any incapacitating episodes requiring bed rest prescribed by a physician. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent for degenerative changes of the low back, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty for training in the United States Army from May 2005 to September 2005 and active duty from October 2010 to October 2011 with service in Southwest Asia. This case comes before Board of Veterans' Appeals (Board) on appeal from a July 2103 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for degenerative change at L4-5 and low back injury and assigned a 10 percent rating. The Veteran expressed timely disagreement with the initial rating in September 2013. After additional development of the evidence, the RO continued the 10 percent initial rating in January 2015. This matter was previously before the Board in February 2019, at which time it was remanded for the review of additional VA records and for further development. The directives having been substantially complied with; the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Service connection for PTSD was granted by the RO in August 2020 and is no longer on appeal Increased Ratings Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. Moreover, joint testing is to be conducted on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 170 (2016). Back The Veteran's low back disability has been rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Formula) (for DCs 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). The Veteran's low back disability is rated under Diagnostic Code 5237, lumbosacral or cervical strain. 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, the Formula provides for ratings as follows: 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 body 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 combined range of motion of the thoracolumbar spine greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal contour such as scoliosis. A 40 percent rating is warranted when there is forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. Associated objective neurologic abnormalities are evaluated separately. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5237, 5242, Note 1. Note 1 to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. The Veteran has been granted service connection and assigned ratings for bilateral radiculopathy of the lower extremities as associated with his low back disability. Note 2 states that, 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. 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. Intervertebral disc syndrome permits evaluation under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5242, 5243. Diagnostic Code 5243 provides for rating intervertebral disc syndrome (IVDS) under the General Rating Formula for Diseases and Injuries of the Spine, or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Formula for Rating IVDS based on Incapacitating Episodes provides ratings for incapacitating episodes as follows: having a total duration of at least 6 weeks during the past 12 months (60 percent); having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40 percent); having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months (20 percent); and having a total duration of at least one week but less than 2 weeks during the past 12 months (10 percent). 38 C.F.R. § 4.71a. Note 1 states that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note 2 indicates that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, the rater is to evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. The Veteran contends he is entitled to an initial rating in excess of 10 percent for his service-connected degenerative arthritis of the lumbar spine. In a November 2012 VA progress note, a clinician indicated that he had a herniated disc lower lumbar area with pain at a 4-10. The clinician noted magnetic resonance image (MRI) results of degenerative changes at L4-L5 and L5-S1 with disc extrusion resulting in narrowing and mild compression of the left L5 and right S1 nerve roots. Also, the Veteran had mild congenital canal stenosis with minimal retrolisthesis at L5-S1. See November 2012 Capri, p.6. In a September 2013 notice of disagreement (NOD) the Veteran appealed the initial rating for degenerative change at L-4 and L-5 and low back injury and requested an evaluation of 30 percent. See September 2013 NOD, p.1. In a May 2014 VA treatment record, a clinician noted that the musculoskeletal exam revealed no muscle wasting; joints had good range of motion; the spine had a good range of motion; but the Veteran had lower back tenderness. See October 2014 Capri, p.44. In June 2014, the Veteran underwent another MRI. The examiner noted the Veteran had a history of low back pain and bilateral leg pain/ numbness. The examiner found that L4-L5 and L5-S1 of the back had disc protrusions with disc material at the L5-S1 level, appearing at the S1 nerve roots. See October 2014 Medical Treatment Record-Non-Government Facility, p.2. In an October 2014 VA treatment record, the Veteran reported persistent back pain, that came and went, with varying intensity. See October 2014 Capri, p.2. In October 2014 the Veteran was afforded a back examination. The Veteran reported that his back condition began in Iraq, while carrying heavy items and his condition remained the same since that service. The Veteran stated his pain was present all the time and he walked with a cane. However, the examiner noted that posture and gait were normal. The Veteran reported flareups of his thoracolumbar spine. The Veteran described his flare-ups as he had to walk with a cane. Initial range of motion testing revealed forward flexion to 75 degrees; extension was to 20 degrees; right lateral flexion was to 15 degrees; left lateral flexion to 10 degrees and right and left lateral rotation at 30 degrees. The combined range of motion was 180 degrees. Range of motion did not change after three repetitions. The Veteran had functional loss or impairment due to less movement than normal and pain on movement. The Veteran did not have localized tenderness or pain on palpation; or guarding or muscle spasms. Muscle strength testing results were normal, and there was no muscle atrophy. The reflex and sensory test were normal. Straight leg raising test was negative, but the Veteran had radicular pain or signs of radiculopathy. The Veteran had IVDS of the spine with incapacitating episodes over those past twelve months; at least 2 weeks but less than 4 weeks. The Veteran used a cane occasionally as an assistive device. The file of VA outpatient treatment records dated in 2013 and 2014 include records of physical therapy for the back and are silent for any orders of bed rest for weeks of incapacitation. In a February 2015, the Veteran submitted another notice of disagreement (NOD). The Veteran stated his back injury effected his walking and made him unable to run, which was required for his job at the time. The Veteran indicated that as a result that he would lose his job on his next run test and when he walked, he often required a cane and have constant pain in his legs. See February 2015 NOD, p.1. In a September 2015 form 9, the Veteran stated that he should have higher than a 10 percent rating; because he was forced to walk with a cane some days and had to change jobs. See October 2015 Form 9, p.1. In a November 2015 correspondence, the Veteran’s representative indicated that it was the Veteran’s contention that he was entitled to a higher rating than 10 percent for his back condition. The Veteran’s representative indicated that the Veteran had to use an assistive device to walk and had to change jobs as a result. See December 2015 VA 646 Statement of Accredited Representative in Appealed Case, p.2. The Veteran underwent a VA examination for his back in January 2020. The examiner indicated that the Veteran had a diagnosis of degenerative arthritis of the spine. The examiner indicated that the examination revealed a moderate reduction in range of motion without pain. The examiner noted that the Veteran had bilateral radiculopathy. The Veteran reported that his low back pain had affected his intimacy life. The Veteran did not report flareups. The Veteran did not report functional loss or functional impairment. Initial range of motion testing revealed forward flexion to 65 degrees; extension was to 25 degrees; right and left flexion was to 30 degrees and right and left lateral rotation was to 30 degrees. The combined range of motion was 210 degrees. There was no evidence of pain on weight bearing or evidence of localized tenderness or pain on palpation. There was no additional loss of function or range of motion after three repetitions. The Veteran was not examined immediately after repetitive use over time, and the examiner indicated that the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. The Veteran did not have guarding or muscle spasms of the thoracolumbar spine. Muscle strength testing was normal and there was no muscle atrophy. Reflex and sensory testing was normal, except lower leg/ ankle and foot/ toe sensory had decreased. Straight leg raising testing results were normal. The Veteran had radicular pain or signs of radiculopathy; because bilateral lower extremities were mild with intermittent pain, paresthesias and/or dysesthesias and numbness. There was no ankylosis of the spine and there was no IVDS of the thoracolumbar spine. The examiner did not note any periods of incapacitation requiring bed rest ordered by a physician. The Veteran did not use any assistive devices. The examiner noted that the condition impacted the Veteran’s ability to work; because it would have limited a physical type of job. The examiner also noted that there was no evidence on passive range of motion and pain on non-weight bearing. In a January report of an examination for another disability, the Veteran reported that he had been working as a police officer for the past two years but that the department was “laid back.” Upon review of the medical evidence, the Board finds that a rating in excess of 10 percent is not warranted for degenerative arthritis of the lumbar spine. In this regard, the evidence does not show 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, muscle spasms or guarding that is severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. At worst the forward flexion was to 65 degrees. However, in the October 2014 VA examination, the Veteran reported that he had incapacitating episodes of IVDS with a total duration of at least 2 weeks but less than 4 weeks during the past 12 months but there was no evidence that the Veteran was prescribed bedrest at that time. Outpatient records did not confirm the reported episodes. Then in the January 2020 VA back examination, the examiner noted that the Veteran did not have IVDS. Furthermore, the evidence does not reflect that pain or any of the other DeLuca factors resulted in limitation of motion that more nearly approximated a higher rating for lumbar strain (forward flexion greater than 30 but not greater than 60) at any time during the period on appeal. The Board recognizes that the Veteran experienced limitation of motion during flare-ups, however, there is no medical evidence suggesting forward flexion of the thoracolumbar spine was ever less than 60 degrees. At all of the VA examinations, the Veteran demonstrated that he was able to perform repetitive-use testing and showed no additional limitation of motion following such testing. Any additional functional loss due to pain, weakness, and fatigability in the thoracolumbar spine would not suffice to reduce flexion to greater than 30 degrees but not greater than 60 degrees. In sum, the medical evidence does not support a rating in excess of 10 percent for the low back condition. The lay and medical evidence of record reflect that the Veteran's back disability causes minimal impact on his day to day life, except for when he experiences flare-ups. The Board places probative weight on the assessments of the loss of function from flare-ups provided by the October 2014 VA examiner, and the Veteran did not report flare ups in the January 2020 examination. He did report working as a police officer. The Board acknowledges that the Veteran contends that his low back disability warrants a higher evaluation. In determining the actual degree of disability, however, contemporaneous medical records and an objective examination by a health professional are more probative of the degree of the Veteran's impairment. This is particularly so where the rating criteria require analysis of the clinically significant symptoms and objectively measurable criteria, but the Veteran is a lay person. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012). Such competent evidence concerning the nature and extent of the Veteran's low back disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which these disabilities are evaluated. Moreover, as the examiners have the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical reports great probative value. As such, these records are more probative than the Veteran's subjective evidence of complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable, and the appeal is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Long-Ellis, 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.