Citation Nr: 21020000 Decision Date: 04/06/21 Archive Date: 04/06/21 DOCKET NO. 15-22 816 DATE: April 6, 2021 ORDER Entitlement to a rating in excess of 20 percent for degenerative arthritis of the lumbar spine, from August 18, 2014, to March 2, 2020, is denied. Entitlement to a rating in excess of 40 percent for degenerative arthritis of the lumbar spine, as of March 3, 2020, is denied. FINDINGS OF FACT 1. From August 18, 2014, to March 2, 2020, the Veterans lumbar spine disability is manifested by, at worst, flexion to 55 degrees. 2. As of March 3, 2020, the Veterans lumbar spine disability is manifested by, at worst, flexion to 10 degrees. CONCLUSIONS OF LAW 1. From August 18, 2014, to March 2, 2020, the criteria for an evaluation in excess of 20 percent for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5242. 2. As of March 3, 2020, the criteria for an evaluation in excess of 20 percent for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1983to July 1986. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision of the Department of Veteran’s Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In February 2019 and April 2020, this claim was remanded for additional development. The Board notes that during the period on appeal, the Veteran’s lumbar spine disability rating was increased to 40 percent as of March 3, 2020. Increased Rating A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 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 their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40 and 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In considering the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). Entitlement to a rating in excess of 20 percent, prior to March 3, 2020, for degenerative joint disease of the lumbar spine and in excess of 40 percent thereafter The Veteran and his representative claim that he is entitled to a higher rating for his service-connected degenerative disc disease of the lumbar spine. From August 18, 2014, to March 2, 2020, the disability was rated at 20 percent disabling and, as of March 3, 2020, the disability is rated at 40 percent under the General Rating Formula for Diseases and Injuries of the Spine. The General Rating Formula for Diseases and Injuries of the Spine holds that for Diagnostic Codes 5235 to 5243, a rating of 100 percent is warranted when there is unfavorable ankylosis of the entire spine. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted when there is unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. The criteria also include the following provisions: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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 cervical spine is 340 degrees and 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. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the veteran's mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Intervertebral disc syndrome (IVDS) (preoperatively or postoperatively) may be evaluated either 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. 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating IVDS Based on Incapacitating Episodes provides for a 60 percent rating when there are incapacitating episodes of IVDS having a total duration of at least six weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least two weeks, but less than four weeks during the past 12 months. A 10 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least one week, but less than two weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IDS that required bed rest prescribed by a physician and treatment by a physician. An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method resulted in the higher evaluation. During the course of the appeal, the Veteran has been afforded four VA examinations in November 2014, October 2015, August 2017, and September 2020. The November 2014 VA examiner diagnosed the Veteran with a lumbosacral strain. No flare-ups were reported during the VA examination. And range of motion (ROM) is tested actively and against resistance. The Veteran's ROM is limited, and he experiences pain on motion--specifically the Veteran's flexion is limited to 65 degrees (normal is 90), the extension is limited to 20 degrees (normal is 30), the right lateral flexion is limited to 20 degrees (normal is 30), the left lateral flexion is limited to 20 degrees (normal is 30), right rotation is limited to 20 degrees (normal is 30), and left rotation is limited to 20 degrees (normal is 30). Repetitive testing does not show additional loss to the Veteran's ROM. The examination of the thoracolumbar spine revealed diffuse tenderness of bilateral paravertebrals starting in mid-thoracic and into the lumbar region. There was no guarding or muscle spasms noted on examination. There was normal muscle strength in testing. The examination did not reveal ankylosis or IVDS. The Veteran did not report using assistive devices. The examiner opined that the Veteran’s lumbar disability does not result in functional impact. The October 2015 VA examiner diagnosed the Veteran with degenerative arthritis of the spine. No flare-ups were reported during the VA examination. The Veteran's ROM is limited, and he experiences pain on motion--specifically the Veteran's flexion is limited to 55 degrees (normal is 90), the extension is limited to 20 degrees (normal is 30), the right lateral flexion is limited to 20 degrees (normal is 30), the left lateral flexion is limited to 20 degrees (normal is 30), right rotation is limited to 25 degrees (normal is 30), and left rotation is limited to 25 degrees (normal is 30). The Veteran has some tenderness to palpation of the mid to lower thoracic region and also at times experienced some pain in this area while lying supine. Repetitive testing does not show additional loss to the Veteran's ROM. There was no guarding or muscle spasms noted on examination. The Veteran was noted as having normal muscle strength in testing. The examination did not reveal ankylosis or IVDS. The Veteran did not report using assistive devices. The examiner opined that the Veteran’s lumbar disability does not result in functional impact. The August 2017 VA examiner diagnosed the Veteran with degenerative arthritis of the spine. No flare-ups or functional loss were reported during the VA examination. The Veteran's ROM is limited, and he experiences pain on motion--specifically the Veteran's flexion is limited to 70 degrees (normal is 90), the extension is limited to 20 degrees (normal is 30), the right lateral flexion is limited to 20 degrees (normal is 30), the left lateral flexion is limited to 20 degrees (normal is 30), right rotation is limited to 20 degrees (normal is 30), and left rotation is limited to 20 degrees (normal is 30). Repetitive testing does not show additional loss to the Veteran's ROM. There was no guarding or muscle spasms noted on examination. The Veteran was noted as having normal muscle strength in testing. The examination did not reveal ankylosis or IVDS. The Veteran did not report using assistive devices. The examiner opined that the Veteran’s lumbar disability does not result in functional impact. VA outpatient records from April 2019 indicate that the Veteran reported the onset of pain in the center of his back while cycling and was seeking a renewal of pain medication. Records from July 2019 reflect that the Veteran reported the onset of lower back pain when “picking up his granddaughter” a week earlier. He further reported that since then, he had been to the chiropractor on four different occasions. The plan was for him to undergo physical therapy. VA outpatient treatment records from November 2019 reflect that the Veteran reported increased lower back pain into the buttocks. Examination of range of motion at this time revealed that flexion was mildly decreased with pain and that extension was moderately decreased with pain. The assessment was lumbalgia with segmental dysfunction and associated myalgia. The prognosis was fair. In February 2020, it was noted that the Veteran’s problems included a history of chronic low back pain. Private chiropractic records from April 2020 note that the Veteran was undergoing treatment for the exacerbation of his low back condition that was currently non-radiating. Range of motion testing of the thoracic and entire lumbar spine was recorded as moderately reduced with pain noted. These records date back to June 2016, but prior to April 2019, the limited movement with respect to the lumbar spine was described more as mild in nature. The September 2020 VA examiner diagnosed the Veteran with degenerative arthritis of the spine. The Veteran reported experiencing current symptoms of constant aching pain in low back with intermittent shooting pain down the bilateral legs. No flare-ups were reported during the VA examination. The examiner reported that the Veteran has impairment of prolonged standing and walking and bending, which results in functional loss. The Veteran's ROM is limited, and he experiences pain on motion--specifically the Veteran's flexion is limited to 10 degrees (normal is 90), the extension is limited to 0 degrees (normal is 30), the right lateral flexion is limited to 10 degrees (normal is 30), the left lateral flexion is limited to 10 degrees (normal is 30), right rotation is limited to 10 degrees (normal is 30), and left rotation is limited to 10 degrees (normal is 30). The Veteran reported difficulty with bending and putting on shoes and socks. The Veteran is unable to do repetitive use testing because of extreme pain. No additional limitation to ROM during repeated use over time. Muscle spasm result from degenerative arthritis, causing irritability and reversing the normal lumbar lordosis. The Veteran was noted as having normal muscle strength in testing. The examination did not reveal ankylosis or IVDS. The Veteran regularly uses assistive devices, such as a back brace to decrease pain from degenerative arthritis. The VA examiner opined that the Veteran’s lumbar spine disability causes a functional impact causing an impairment of sitting, standing, walking, bending because of degenerative arthritis. A. From August 18, 2014, to March 2, 2020 The Board finds that the medical evidence of record from August 18, 2014, to March 2, 2020, reflects findings that are actually consistent with a 10 percent rating based on the General Rating Formula for Diseases and Injuries of the Spine. His most significant loss of motion for this period was his flexion, which was, at worst, 55 degrees with pain on motion. However, that measurement squarely places the Veteran's limited movement within the 20 percent criteria for rating the back, when including consideration of the Veteran's pain on functional use. The Veteran also denied any incapacitating episodes within the previous 12 months. Accordingly, the Board concludes that the preponderance of the evidence is against a finding that the Veteran is entitled to a higher rating from August 18, 2014, to March 2, 2020. B. As of March 3, 2020 The Board finds that the medical evidence of record as of March 3, 2020, reflects findings that are consistent with a 40 percent rating based on the General Rating Formula for Diseases and Injuries of the Spine. His most significant loss of motion for this period was his flexion, which was, at worst, 10 degrees with pain. However, that measurement squarely places the Veteran's limited movement within the 40 percent criteria for rating the back, including consideration of the Veteran's pain on functional use. The Veteran also denied any incapacitating episodes within the previous 12 months. The board also noted that the Veteran’s current 40 percent rating is the maximum schedular disability rating based on limitation of motion, and thus an even higher rating for limited motion based on functional use is not warranted. Johnston v. Brown, 10 Vet. App. 80 (1997) and Spencer v. West, 13 Vet. App. 376 (2000). Ankylosis is also not present. Accordingly, as the Veteran does not have ankylosis of the thoracolumbar spine and additional lost motion based on functional use is not for consideration, the Board concludes that the preponderance of the evidence is against a finding that the Veteran is entitled to a higher rating as of March 3, 2020. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. R. Montalvo, 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.