Citation Nr: 21015671 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 16-50 081 DATE: March 18, 2021 ORDER A disability rating greater than 20 percent for the service-connected degenerative arthritis of the lumbar spine is denied. FINDING OF FACT The Veteran’s service-connected degenerative arthritis of the lumbar spine has not been manifested by forward flexion of the thoracolumbar spine to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks during any 12 month period. CONCLUSION OF LAW The criteria for a disability rating greater than 20 percent for the service-connected degenerative arthritis of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION In October 2019, the Board remanded this appeal to provide the Veteran with an examination to assess the severity of his lumbar spine disability. In April 2020, the Board remanded the appeal for further examination. The record reflects substantial compliance with the remand requests. Dyment v. West, 13 Vet. App. 141 (1999). While the Veteran’s disability was previously characterized as a chronic back strain, a July 2020 VA examination revealed that this disability has progressed to degenerative arthritis of the lumbar spine. Thus, the Board has recharacterized the disability as noted above. During the appeal period, in an August 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for right lower extremity radiculopathy and left lower extremity radiculopathy and assigned each disability a 10 percent rating effective July 26, 2020. As the Veteran did not file a notice of disagreement with the assigned rating or effective date for either disability, those issues are not before the Board. Increased Rating—Degenerative Arthritis of the Lumbar Spine Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture 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. The Veteran’s chronic back strain had been rated under Diagnostic Code 5237. 38 C.F.R. § 4.71a. However, as noted above, his disability has progressed to degenerative arthritis of the lumbar spine, which is rated under Diagnostic Code 5242. 38 C.F.R. § 4.71a. The following ratings are available for Diagnostic Code 5242 under the General Rating Formula for Diseases and Injuries of the Spine, 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: 100 percent for unfavorable ankylosis of the entire spine; 50 percent for unfavorable ankylosis of the entire thoracolumbar spine; 40 percent for forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; and 20 percent for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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. 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. Plate V, 38 C.F.R. § 4.71a. Under Diagnostic Code 5243 for intervertebral disc syndrome, such disability may also be rated under The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides for a 20 percent rating when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) defines an incapacitating episode as 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. 38 C.F.R. § 4.71a. Initially, as noted above, the evaluations of the Veteran’s associated radiculopathy of the lower extremities are not before the Board. At a December 2011 VA examination, the Veteran reported low back pain, worse on bending and lifting. He denied any functional impact on flare-ups. Range of motion testing revealed flexion to 70 degrees, extension to 15 degrees, right and left lateral flexion to 15 degrees each, and right and left lateral rotation to 15 degrees each. Repetitive use testing revealed no additional loss of range of motion. The examiner indicated that there was functional loss due to less movement than normal. The examiner indicated that the Veteran does not have intervertebral disc syndrome with incapacitating episodes. The examiner indicated that the Veteran’s disability does not impact his ability to work. At an October 2019 VA examination, the Veteran reported back pain with difficulty sleeping. He reported flare-ups during which he would have difficulty walking or sitting at times. Range of motion testing revealed flexion to 90 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees each, and right and left lateral rotation to 30 degrees each. The examiner indicated that the Veteran could not perform repetitive use testing but noted suboptimal effort. The examiner also indicated that pain, weakness, fatigability or incoordination would not significantly limit functional ability with repeated use over a period of time or during a flare-up. The examiner noted that there were no additional contributing factors of disability. The examiner indicated that the Veteran does not have intervertebral disc syndrome with incapacitating episodes. The examiner indicated that the Veteran would have difficulty walking or standing for long periods, inability to intervene with students, difficulty driving, inability to do household chores, and difficulty getting dressed. At a July 2020 VA examination, the Veteran reported back pain with decreased range of motion. He reported flare-ups of sharp pain during which he feels like he cannot do anything. Range of motion testing revealed flexion to 40 degrees, extension to 10 degrees, right and left lateral flexion to 15 degrees each, and right and left lateral rotation to 15 degrees each. Repetitive use testing revealed no additional loss of function or range of motion. The examiner indicated that pain and weakness would significantly limit functional ability with repeated use over a period of time or during a flare-up but indicated that range of motion would remain the same during those times. The examiner indicated that there are no additional contributing factors of disability. The examiner indicated that the Veteran does not have intervertebral disc syndrome with incapacitating episodes. The examiner indicated that the Veteran would have difficulty with prolonged standing, walking, pushing, pulling, lifting, driving, and climbing ladders. VA treatment records show that forward flexion of the Veteran’s lumbar spine was limited to 50 degrees in November 2011, 75 degrees in April 2017, and 45 degrees in August 2017. There are no other pertinent range of motion findings. Given the above, the Veteran’s lumbar spine disability has not resulted in forward flexion of the thoracolumbar spine to 30 degrees or less. Despite the pain, he was able to forward flex to at least 40 degrees, even after repetition. Moreover, the July 2020 examiner indicated that, while the Veteran would have increased pain and weakness during a flare-up and with repeated use over a period of time, he would have no further limitation of motion. There is also no evidence of ankylosis. Thus, even considering functional loss due to pain and other factors, the Veteran’s lumbar spine disability has not more nearly approximated flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The evidence of record simply does not support such a finding. The Board notes that the Veteran is competent to give evidence about observable symptoms such as low back pain. Layno v. Brown, 6 Vet. App. 465 (1994). However, the objective evidence fails to show that he has the necessary limitation of range of motion to warrant a higher 40 percent rating. Thus, a higher rating based on limitation of motion is not warranted. There is also no evidence that the Veteran’s lumbar spine disability has resulted in intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks during any 12-month period. The Veteran did not report having incapacitating episodes at any of the examinations, and the other medical evidence of record does not show any such episodes. Thus, a higher evaluation based on incapacitating episodes is not warranted. Accordingly, the Board concludes that a disability rating greater than 20 percent for the service-connected degenerative arthritis of the lumbar spine is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In reaching this decision, the Board has also considered whether separate compensable ratings are warranted for other neurological abnormalities (e.g., bowel or bladder abnormalities) associated with the service-connected lumbar spine disability. However, no such abnormalities associated with this service-connected disability have been shown. Accordingly, separate compensable ratings based on such associated problems are not warranted. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. W. Kim, 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.