Citation Nr: 21014743 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 08-32 445 DATE: March 15, 2021 ORDER Entitlement to an increased disability evaluation in excess of 20 percent for lumbosacral-spine disorder is denied. FINDING OF FACT Throughout the appeal period, repeated examinations have not revealed limitation of flexion of 30 degrees or less, or other severe limitation of motion. CONCLUSION OF LAW The criteria for an increased disability rating in excess of 20 percent for lumbosacral-spine disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.6, 4.7, 4.40, 4.45, 4.59, 4.114, Diagnostic Code 5243-5237 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from July 1964 to June 1967. In April 2015, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was most recently Remanded in December 2019, and has now been returned to the Board. Increased Schedular Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7 (2020). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Additionally, it is possible for a veteran to be awarded separate percentage evaluations for separate periods (staged ratings), based on the facts. See Fenderson v. West, 12 Vet. App. 119, 126–27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where an increase in the disability rating is at issue, the present level of the veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the relevant overall temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under several diagnostic codes, known as “pyramiding,” must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14 (2019). When evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the “pain must affect some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance,’” as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while “pain may cause a functional loss, pain itself does not constitute a functional loss,” and, is therefore, not grounds for entitlement to a higher disability rating). Additionally, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, actually painful, unstable or malaligned joints, due to a healed injury, are recognized as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; see also Burton v. Shinseki at 5 (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis). Entitlement to an increased disability evaluation in excess of 20 percent for lumbosacral-spine disorder. Lumbar-spine disorder is evaluated under Diagnostic Code 5243-5237. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. In short, the first diagnostic code, 5243, indicates the disorder was initially diagnosed as intervertebral disc syndrome (IVDS), whereas the second code, 5237, indicates relevant criteria for evaluating the resulting limitation of motion of the lumbosacral spine. Diagnostic Code 5237 defers to the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), under which a 20 percent rating is assigned 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. 38 C.F.R. § 4.71a. A 40 percent rating is assigned when forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Id. The Board will briefly note here that ankylosis is “immobility and consolidation of a joint due to disease, injury, [or] surgical procedure.” Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing SAUNDERS’ ENCYCLOPEDIA AND DICTIONARY OF MEDICINE, NURSING, AND ALLIED HEALTH at 68 (4th ed.1987)). Note (2) of the General Rating Formula provides 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 motion 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. Id. Although Note 4 of the General Rating Formula offers the choice of alternatively rating lumbar spine disorder under the Formula for Rating Intervertebral Disc Syndrome for whichever criteria of the two rating formulae provides a higher evaluation, the latter rating formula must be based on incapacitating episodes in the last 12 months, defined as a period of acute signs and symptoms due to intervertebral disc syndrome which requires bed rest prescribed by a physician and treatment by a physician. Turning to the record, in the period of August 2006 through at least August 2020, the Veteran presented for routine follow-up care for lumbosacral-spine disorder at VA. August 2006 VA treatment notes show that the Veteran by that time had been referred to VA’s pain Management clinic, where he began swimming-pool therapy, medications and facet injections. In October 2006, the Veteran was diagnosed at VA with lumbosacral strain, with arthritis of the lumbar spine. The treatment provider noted the Veteran’s reports of pain, aching and soreness and, on examination, he found painful motion. He made no findings of ankylosis of the spine. A September 2008 VA examination for spine shows the Veteran’s reports of chronic lumbosacral pain, with radiation to the left-lower extremity. Among findings examination, relevant range of motion measurements show forward flexion of the thoracolumbar spine was 0 to 80 degrees (90 degrees, normal), with pain beginning at 45 degrees. Extension ended at 0 to 10 degrees (30 degrees, normal), with pain throughout the maneuver. The Veteran did not report flare-ups. The September 2008 VA examiner’s specifically found “no ankylosis present.” In a February 2009 VA examination for spine, the VA examiner noted the Veteran’s reports of constant pain which can be severe, causing missed work 3 days at a time, he experiences stiffness weakness and fatigability, it radiates to the left leg and foot, pain increases with prolonged periods of sitting, standing or repetitive bending, his gait is antalgic, and he wears a back support. The Veteran further reported he has had no incapacitating episodes in the last 12-month period and does not need to see a physician when pain is severe enough to miss work for 3 days. The February 2009 VA examiner found forward flexion of the thoracolumbar spine was 0 to 70 degrees, with pain beginning at 45 degrees. Extension ended at 0 to 10 degrees, with pain and the Veteran reported no flare-ups. She made no finding of ankylosis of any sort. She diagnosed lumbar-spine degenerative disc disease. Between April 2008 and at least July 2011, the Veteran presented for routine treatment with his private treatment providers, Drs. R. L. and B.C., from whom he received diagnoses of lumbar-spine degenerative disc disease and lumbar intervertebral disc degeneration. In July 2011, the Veteran was referred to Centers for Comprehensive Pain Care, at which a series of diagnostic and therapeutic epidural steroid injections were planned, being 2 injections one week apart to be done at the Northeast Ohio Surgery Center under fluoroscopic guidance and local anesthesia. Additionally, at least 4 fluoroscopy-guided lumbar epidural steroid injections at various vertebrae levels followed at VA between April 2012 and March 2014, with overall good results. In May 2014, the Veteran underwent a VA examination for thoracolumbar-spine conditions, in which the VA examiner diagnosed lumbosacral strain, lumbosacral degenerative disc disease and arthritis. He noted the Veteran’s reports of having constant low-back pain daily, increasing with activity. His treatment had been medications, a TENS unit and epidural injections. Range of motion measurements show forward flexion of the thoracolumbar spine was 0 to 45 degrees (90 degrees, normal), with pain throughout the maneuver. The Veteran could not extend beyond 0 degrees, with pain. The Veteran did not report flare-ups. Although on examination, the May 2014 VA examiner found the Veteran has IVDS, he had not had any incapacitating episodes over the past 12 months. He further found there was no ankylosis of the spine. In a May 2017 VA examination for thoracolumbar-spine conditions, the VA examiner diagnosed lumbosacral strain and degenerative disc disease. He noted the Veteran’s reports of having constant low-back pain daily, increased by walking, standing, sitting, lifting, and repetitive movements. On examination, range of motion measurements show forward flexion of the thoracolumbar spine was 0 to 40 degrees, with pain. Extension was now 0 to 10 degrees, with pain. The Veteran did not report flare-ups. The May 2017 VA examiner found the Veteran has IVDS, but he had not had any incapacitating episodes over the past 12 months. He found there was no ankylosis. In a January 2020 VA examination for thoracolumbar-spine conditions, the VA examiner diagnosed lumbosacral strain and degenerative disc disease. She noted the Veteran’s reports of experiencing more pain in his legs, left worse than right, but rarely traveling to his feet. On examination, range of motion measurements show forward flexion of the thoracolumbar spine now was at 0 to 80 degrees, with no pain noted. Extension was now 0 to 20 degrees, with pain noted. The Veteran did not report flare-ups or limited functional ability with repeated use over time. This VA examiner found the Veteran does not have IVDS. He further found there is not ankylosis of the spine. All VA examinations in the appeal period include findings of pain or painful motion. Those findings, as well as other factors of weakness, excessive fatigability, or incoordination, have been considered and are ultimately reflected in the assigned disability rating, consistent with DeLuca v. Brown, 8 Vet. App. 204-07; Burton v Shinseki, 25 Vet. App. at 5. So, too, is pain affecting normal working movements of the body such as “excursion, strength, speed, coordination, and endurance,” as defined in 38 C.F.R. § 4.40, considered in the above findings. Specifically, the September 2008 and the February 2009 VA examiners, in referencing DeLuca, found no additional limitation of motion following repetitive use, only pain. Based on the findings of all VA examinations, no higher rating for these factors is warranted. The foregoing summary of the record shows in no less than 5 VA examinations in the appeal period forward flexion was ever found to be below 30 degrees, as required for a 40 percent rating. Moreover, no VA examiner found ankylosis of the spine of any sort. Additionally, in the period of VA and private treatment from August 2006 to August 2020, no treatment provider ever made the above findings. Without such findings, the Veteran cannot attain any higher rating under the General Rating Formula. The Board has carefully considered the Veteran’s April 2015 Board hearing testimony of his current symptoms, as well as is reports to treatment providers and examiners, as they appear throughout the record. The Board is well aware lay persons are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. However, the lay evidence of the Veteran must in turn be weighed against other evidence, as all relevant evidence of varying kinds must be considered. Although the Veteran testified in great detail as to his low-back disorder, 5 VA examiners made no finding to satisfy the rating criteria for a higher evaluation. The examinations represent an undeniable consistency in medical findings on examination between 2008 and 2020. The Board therefore assigns more probative value to the 5 examination reports in the period, as they were conducted by medical professionals after in-person examinations and testing of the Veteran’s spine, the examiners reviewed of the Veteran’s medical history and their orthopedic findings, for the reasons stated, exhibit sound clinical conclusions. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in assessing the adequacy of an opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion). For the foregoing reasons and based on medical evidence of records, the Board finds the preponderance of the evidence is against the claim for an increased disability evaluation in excess of 20 percent for lumbosacral-spine disorder. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. As the preponderance of the evidence is against the claim, the doctrine is not applicable and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Franke, 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.