Citation Nr: 21023444 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 15-24 435 DATE: April 20, 2021 ORDER Entitlement to a higher disability rating for degenerative joint and disc disease of the lumbar spine (lumbar spine disability), in excess of 10 percent prior to May 20, 2015, and in excess of 20 percent from May 20, 2015, is denied. FINDINGS OF FACT 1. Prior to May 20, 2015 the Veteran’s lumbar spine disability was not productive of incapacitating episodes due to intervertebral disc syndrome (IVDS), ankylosis, forward flexion of the thoracolumbar spine to 60 degrees or less, combined range of motion limited to 120 degrees or less, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or the functional equivalent thereof. 2. From May 20, 2015, the Veteran’s lumbar spine disability has not been productive of IVDS, ankylosis, forward flexion of the thoracolumbar spine to 30 degrees or less, or the functional equivalent thereof. CONCLUSIONS OF LAW 1. The criteria for an award of a disability rating in excess of 10 percent for the lumbar spine disability for the period prior to May 20, 2015 have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 2. The criteria for an award of a disability rating in excess of 20 percent for the lumbar spine disability for the period from May 20, 2015 have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1998 to October 2003. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled for a hearing before a member of the Board in February 2019, but did not appear, provide good cause for failing to appear, or request rescheduling. As such, his hearing request was deemed withdrawn. 38 C.F.R. § 20.704(d). In August 2020, the Board remanded the matter currently on appeal to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. See December 2020 supplemental statement of the case. 1. A disability rating in excess of 10 percent for the lumbar spine disability prior to May 20, 2015 is denied. 2. A disability rating in excess of 20 percent for the lumbar spine disability from May 20, 2015 is denied. Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disabilities and their ratings are listed in Diagnostic Codes (DCs). The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination. 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Service connection for degenerative joint and disc disease of the lumbar spine was granted in a January 2012 rating decision and the RO assigned a 10 percent rating effective November 23, 2010. In June 2015, the RO granted an increased 20 percent rating for the Veteran’s lumbar disability effective May 20, 2015. As higher schedular ratings for the lumbar spine disability are possible both prior to and after May 20, 2015, and the Veteran has not withdrawn the appeal, the matter remains before the Board on appeal. AB v. Brown, 6 Vet. App. 35 (1993). The Veteran’s service-connected lumbar spine disability is rated under Diagnostic Code 5242, which is part of the General Rating Formula for Diseases or Injuries of the Spine, Diagnostic Codes 5235 to 5243. The diagnostic code for intervertebral disc syndrome (DC 5243), permits rating 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 rating when all disabilities are combined. 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases or Injuries of the Spine (General Formula), a 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is 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 evaluation is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating, and unfavorable ankylosis of the entire spine warrants a 100 percent rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. When rated based on incapacitating episodes, a 20 percent rating is warranted for intervertebral disc syndrome with 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; and 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. 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. 38 C.F.R. § 4.71a. The normal findings for range of motion of the lumbar spine are from 0 to 90 degrees for forward flexion; 0 to 30 degrees for extension, lateral flexion, and rotation. 38 C.F.R. § 4.71a, Plate V. Note (5) of the General Formula defines unfavorable ankylosis as 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 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 the neutral position (zero degrees) always represents favorable ankylosis. Pursuant to Note (1) of the General Formula, associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are separately evaluated under an appropriate diagnostic code. The Board notes that the Veteran alleges radicular pain. This issue has been addressed as the Veteran has been service-connected for bilateral lower extremity radiculopathy. As such, the Board will not address it in this decision. Effective February 7, 2021 VA’s schedule for rating disabilities of the musculoskeletal system and muscle injuries was amended. See 85 FR 76453, 76463, Nov. 30, 2020. Changes were made to Diagnostic Code 5242 noting that the code pertains to degenerative arthritis and degenerative disc disease other than intervertebral syndrome. As for Diagnostic Code 5243 for intervertebral disc syndrome, this diagnostic code now applies when there is disc herniation with compression and/or irritation adjacent to the nerve root, otherwise a rating is to be assigned for Diagnostic Code 5242 for all other disc diagnoses. The Board is required to consider the claim in light of both the old and new criteria to determine whether an increase is warranted. If the amended rating criteria are favorable to the claim, the amended criteria can be applied only from and after the effective date of the regulatory change. The Veteran does get the benefit of having both the old and new criteria considered for the period after the change was made. VAOPGCPREC 3-2000. The Board has considered the criteria both prior to February 7, 2021 and thereafter in evaluating the Veteran’s service-connected lumbar spine disability. There is no indication that the Veteran suffers from or is diagnosed with IVDS, thus there is no need to apply the updated regulations for Diagnostic Code 5243. A November 2010 VA treatment record reported that the Veteran has a history of scoliosis and that her back was getting worse. She reported that she was having trouble walking and experienced severe pain at night. The December 2011 VA examination report noted that the Veteran did not have a thoracolumbar spine diagnosis. However, the examiner indicated that the Veteran reported that flare-ups impact the function of the thoracolumbar spine. Initial range of motion (ROM) measurements reflected that forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation were all normal and that painful motion did not limit ROM. The examiner reported that the Veteran was able to perform repetitive-use testing with three repetitions with the same ROM measurements as with the initial ROM testing. The examiner noted that the Veteran did not have additional limitation in ROM with repetitive use testing nor did the Veteran have any functional loss and/or functional impairment of the back. The examiner further noted that the Veteran did not have localized tenderness or pain to palpation of the joints or soft tissue of the thoracolumbar spine and did not have guarding or muscle spasms of the back. The December 2011 examiner noted that the Veteran did not have IVDS of the back and that she did not need to use any assistive devise for ambulation or any other mode of locomotion. The Veteran reported that she had limitation in walking because of her spine condition and muscle spasms. She reported that she could walk on average 100 feet and that it took her about an hour to accomplish this. She added that she did not experience stiffness, fatigue, spasms, decreased motion, paresthesia, numbness, weakness, or bowel or bladder complaints in relation to her spine condition. She reported that the pain was located in the lower back and that it occurred constantly. She also reported that the pain traveled up and down from the neck to the hips. She noted that the pain could be exacerbated by physical activity but that it had not resulted in any incapacitation. In an August 2012 VA treatment record, the clinician reported that the Veteran had an active problem of scoliosis and that the Veteran had chronic lower back pain. A December 2012 VA treatment record noted that the Veteran had a smooth gait. A July 2013 private treatment record indicated that the Veteran had normal gait and that she was able to stand without difficulty. ROM was moderately-reduced and moderate mechanical back pain was present upon examination. A November 2013 private treatment record noted that the Veteran had normal gait and that ROM was moderately reduced with moderate back pain. A May 2014 VA treatment record indicated that the Veteran was experiencing back spasms after a misstep. She was assessed with a back strain. The Veteran was afforded another VA examination in May 2015. The Veteran reported that flare-ups impacted the function of her back due to pain and limitation of ROM and that she was limited with respect to standing, ambulating, and sitting duration and with lifting and weight bearing. Initial ROM measurements showed that forward flexion was limited to 40 degrees with painful motion beginning at 40 degrees; extension was limited to 10 degrees with painful motion beginning at 10 degrees; right and left lateral flexion were both limited to 20 degrees with painful motion beginning at 20 degrees; and right and left lateral rotation limited to 30 degrees with painful motion beginning at 30 degrees. The Veteran was able to perform repetitive use testing with three repetitions, which showed forward flexion limited to 40 degrees, extension limited to 10 degrees, right and left lateral flexion limited to 20 degrees, and right and left lateral rotation limited to 30 degrees. The examiner noted that the Veteran did not have additional limitation in ROM of the back following repetitive-use testing, but that the Veteran did experience less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing, and/or weight-bearing after repetitive use. The May 2015 VA examiner noted that the Veteran did not have localized tenderness or pain to palpation of the joints and/or soft tissue of the back, but that the Veteran did have guarding or muscle spasms of the back that resulted in abnormal gait. The examiner added that the Veteran did not have IVDS of the lumbar spine, but that she regularly had to use a brace to assist with axial spinal stability during standing and ambulation. The examiner further reported that the Veteran’s posture was within normal limits, that her gait was guarded due to the lower back pain. In a September 2015 VA treatment record, ROM testing showed forward flexion at 25 percent, extension at 25 percent, SB at 25 percent bilaterally, and rotation at 50 percent bilaterally. The examiner noted that gait analysis was within normal limits. The examiner assessed that the Veteran had impaired functional mobility related to lower back pain. A May 2018 VA treatment record reported that the Veteran had mild degenerative change at L3-L4. The Veteran was afforded another VA examination in August 2018. The Veteran reported current symptoms of pain rated eight out of ten, numbness, and weakness. The Veteran also reported flare ups when there is increased activity or standing. The flare ups manifest with increased pain about three times a week for about one to two hours with a ten out of ten severity. The Veteran advanced that she was limited with prolonged standing, sitting, ambulating, and bending. Initial ROM measurements indicated that forward flexion was limited to 50 degrees, extension limited to zero degrees, right lateral flexion limited to 15 degrees, left lateral flexion limited to 10 degrees, and right and left lateral rotation limited to 15 degrees. The examiner noted that the ROM itself contributed to a functional loss since it limits bending and twisting. The examiner also noted that pain was noted on examination and it caused functional loss with forward flexion, extension, right and left lateral flexion, and right and left lateral rotation. There was no evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the bilateral lumbar paraspinal muscles with a pain level of three out of ten. The Veteran was able to perform repetitive-use testing with at least three repetitions and there was no additional loss of function or ROM. The August 2018 VA examiner noted that the Veteran did not have guarding or muscle spasms of the back. The examiner assessed that there was no ankylosis of the spine and that the Veteran did not have IVDS of the lumbar spine. The Veteran occasionally wore a brace or stability and support purposes. In the November 2020 VA examination, the Veteran was diagnosed with degenerative joint and disc disease of the lumbar spine and lumbar interbody fusion of L4/5. The Veteran reported that she was having pain and more frequent spasms in her lower back. The Veteran did not report any flare-ups of the back but did report a functional impairment since she is limited in prolonged sitting, standing, and walking. Initial ROM measurements were all noted as normal. The examiner indicated that pain was noted with forward flexion, extension, right and left lateral flexion, and right and left lateral rotation, but it did not result in or cause a functional loss. The examiner noted that there was evidence of localized tenderness or pain on palpation of the lumbar paraspinal with a pain severity of two out of ten. There was no evidence of pain with weight bearing. The Veteran was able to perform repetitive-use testing with no additional loss of function or ROM after three repetitions. Pain significantly limited the functional ability with repeated use over a period of time. The examiner was able to describe it in terms of ROM with forward flexion limited to 60 degrees, extension limited to 10 degrees, right and left lateral flexion limited to 20 degrees, and right and left lateral rotation limited to 20 degrees. The November 2020 VA examiner noted that the Veteran did not have guarding or muscle spasms of the back. The Veteran did not have ankylosis of the spine nor IVDS. The examiner noted that there was no evidence of pain on non-weight bearing and that passive ROM for the back could not be performed. From November 23, 2010 to May 19, 2015, the Veteran’s thoracolumbar spine disability was productive of flexion at most limited to 90 degrees with pain on motion. The Veteran complained of pain, limitation in walking, and muscle spasms, but upon examination the examiner did not observe any muscle spasms or any abnormal gait. While there was an indication that the Veteran suffered from scoliosis, the December 2011 VA examiner did not find any gait or contour abnormalities. Additionally, in other treatment records, the clinicians consistently reported that the Veteran had normal gait. Such findings are adequately contemplated by the assigned 10 percent rating. In addition, the manifestations that can be associated with the thoracolumbar spine disabilities—even after considering DeLuca factors indicated at 38 C.F.R. §§ 4.40, 4.45, 4.59, and in consideration of the complaints of pain on motion, do not support a finding of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees prior to May 20, 2015. There is no evidence of thoracolumbar spine ankylosis and the Veteran is not shown to have experienced IVDS of the thoracolumbar spine. Thus, a disability rating in excess of 10 percent based on ankylosis, incapacitating episodes, or limitation of motion are not warranted for the lumbar spine for the period from November 23, 2010 to May 19, 2015. Further, the examination and treatment records documented above reflect that prior to May 20, 2015, the Veteran did not experience additional functional loss or limitation of motion with repetitive use and pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time or during flare-up. Accordingly, a disability rating in excess of 10 percent for the lumbar spine is not warranted for the period from prior to May 20, 2015. 38 C.F.R. §§ 4.3, 4.7. The 10 percent rating for the lumbar spine for the period prior to May 20, 2015, adequately contemplate the severity of her disability. Effective May 20, 2015, the Veteran experienced less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing, and/or weight-bearing after repetitive use and the lumbar spine most nearly approximated forward flexion to 40 degrees with painful motion. The May 2015 VA examiner noted that the Veteran experienced guarding that resulted in an abnormal gait. In addition, the manifestations that can be associated with the lumbar spine disability—even after considering DeLuca factors indicated at 38 C.F.R. §§ 4.40, 4.45, 4.59, and in consideration of the complaints of pain on motion, do not support a finding of forward flexion of the thoracolumbar spine 30 degrees or less. There is no evidence of lumbar spine ankylosis, and the Veteran is not shown to have experienced incapacitating episodes of IVDS of the thoracolumbar spine that requires physician prescribed bed rest. Thus, a higher rating based on ankylosis and incapacitating episodes is not warranted for the lumbar spine beginning May 20, 2015. Though less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing, and/or weight-bearing after repetitive use (manifested by flexion of the thoracolumbar spine limited to 40 degrees), the Board reiterates that this additional limitation in functional ability and ROM did not result in forward flexion of the thoracolumbar spine limited to 30 degrees or less. In addition, there is no evidence of pain with weight bearing. Accordingly, a rating in excess of 20 percent for lumbar spine from May 20, 2015 is not warranted. The 20 percent rating for the lumbar spine adequately contemplates the severity of the Veteran’s disability for the period beginning May 20, 2015. Thus, the preponderance of the evidence is against the claim for a rating higher than 10 percent prior to May 20, 2015 and higher than 20 percent from May 20, 2015 onward for the Veteran’s lumbar spine disability, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. J. Ragheb Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Imam, 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.