Citation Nr: 21024395 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 09-00 931 DATE: April 22, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for degenerative disc disease of the lumbar spine from February 1, 2011, is denied. FINDING OF FACT Since February 1, 2011, the Veteran’s degenerative disc disease of the lumbar spine has been manifested by pain, but forward flexion has been to greater than 30 degrees, and the disorder has not resulted in ankylosis of any part of the spine. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine from February 1, 2011, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1989 to September 1993. This appeal to the Board of Veterans’ Appeals (Board) originated from a decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2012, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) that since has been appointed Chairman of the Board. A transcript of the hearing is of record. The law prohibits the Chairman from participating in a proceeding as an individual member but allows her to participate in a proceeding assigned to a panel. See 38 U.S.C. § 7102(b). The Veteran was notified of this in a March 2018 letter. In January 2019, the Board, in pertinent part, denied this claim. In response, the Veteran appealed to the U. S. Court of Appeals for Veterans Claims (Court). In November 2019, in granting a Joint Motion for Partial Remand (Joint Motion), the Court vacated the Board’s most recent decision denying this claim and remanded this claim back to the Board for additional development and consideration. Pursuant to the Joint Motion, in November 2020, the Board remanded this claim back to the RO in order to have the Veteran reexamined to reassess the severity of his low back disability, especially when considering his pain and any consequent functional loss, such as on his range of motion. The Veteran was provided with this additional VA compensation examination in December 2020, and the results provide the information needed to evaluate this disability under all applicable rating criteria and caselaw. Thus, the Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008). Moreover, VA has complied with its duties to notify and assist the Veteran in fully developing this clam pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, and 5126 (2019); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2019); see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Entitlement to an initial rating in excess of 20 percent for degenerative disc disease of the lumbar spine from February 1, 2011, The Veteran seeks a higher initial rating for degenerative disc disease of his lumbar spine from February 1, 2011. The rating code sheet characterizes his low back disability, instead, as degenerative “arthritis” of the spine – meaning degenerative joint disease (DJD) rather than degenerative disc disease (DDD). However, this discrepancy results in no prejudice to the Veteran, as both disabilities may be rated under Diagnostic Code 5242 according to the revisions that recently took effect as of February 7, 2021. Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Veteran’s degenerative disc disease of the lumbar spine is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242, which pertains to degenerative arthritis of the spine. Back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a 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. A 40 percent rating is assigned for limitation of forward flexion of the thoracolumbar spine to 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. Unfavorable ankylosis is defined 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 neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (5). Under the current Formula for Rating IVDS Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12-month period on appeal. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The Board acknowledges that VA amended the criteria for rating various musculoskeletal disabilities effective February 7, 2021. Diagnostic Code 5242 was amended to apply to “degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome,” while Diagnostic Code 5243 is now only assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root (with Diagnostic Code 5242 being assigned for all other diagnoses). There was no change to the applicable rating criteria. Nonetheless, the Board finds that the February 7, 2021, amendments are not relevant here. As discussed below, the Veteran’s intervertebral disc syndrome has not caused episodes of acute signs and symptoms requiring bed rest prescribed by a physician and treatment by a physician at any time during the period on appeal. Moreover, there is no probative indication a spine rating based on ankylosis alternatively is warranted owing to functional immobility of the spine during flare-ups. See Chavis v. McDonough, No. 18-2928 (April 16, 2021). As the Board finds there are no incapacitating episodes, on either premise, a higher rating under Diagnostic Code 5243 is not warranted. In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Evidence of pain alone which results in functional impairment, even if there is no identified underlying diagnosis, can constitute a disability. See Saunders v. Wilkie, 886 F.3d 1356 (2018). In addition, the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain 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. See Correia v. McDonald, 28 Vet. App. 158, 166 (2016). With respect to associated lower extremity radiculopathy, the Court also held in Chavis that the issues of higher ratings for lumbar radiculopathy were part of the claim for a higher rating for the underlying lumbar spine disability, not requiring a separate notice of disagreement in order for the Board to have jurisdiction over these issues, based on the facts of that particular case. The same is true in this case, so the Board is additionally considering the severity of the lower extremity radiculopathy since part and parcel of the claim for a higher rating for the underlying lumbar spine disability. Diagnostic Code 8520 provides ratings based on paralysis of the sciatic nerve. The minimum 10 percent rating is warranted for incomplete mild paralysis. A 20 percent rating is warranted for moderate incomplete paralysis. A 40 percent rating is warranted for moderately severe incomplete paralysis. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. The maximum 80 percent rating is warranted for complete paralysis, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. In rating peripheral nerve injuries and their residuals, attention should be given to the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. The VA Schedule for Rating Disabilities does not define the words "mild," "moderate," and "severe." Rather than applying a mechanical formula, the Board must evaluate all the evidence so that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of such terminology by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The term "incomplete paralysis," with these and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. § 4.124a. Turning to the evidence of record, the medical treatment records dated during the relevant period show that the Veteran reported back pain. However, they do not contain any range-of-motion measurements, expressed in terms of degrees, for the lumbar spine. They also do not show that the Veteran had favorable or unfavorable ankylosis of the thoracolumbar spine at any point during that period. As such, the medical treatment evidence of record does not show that the Veteran was entitled to an initial rating in excess of 20 percent for degenerative disc disease of the lumbar spine at any time during the relevant period. The Board notes that there are several medical examinations that do report range of motion measurements as discussed below. At a March 2011 VA examination, the Veteran reported that his back pain was aggravated by bending and by changes in the weather. He demonstrated objective evidence of pain with motion. Initial range-of-motion testing revealed forward flexion to 50 degrees. The Veteran had no additional loss of function or range of motion following repetitive-use testing. He had normal muscle strength and reflexes, and he had no atrophy. Sensory testing was also normal, and the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. He also did not have ankylosis. He denied flare-ups in his spine condition. At the December 2012 VA examination, the Veteran reported back pain localized at the lower back that was spastic/aching in nature. He denied any radiating of the pain. He indicated that the pain was aggravated by prolonged standing, walking, exercising, and lifting weight. Initial range-of-motion testing revealed forward flexion to 75 degrees with objective evidence of painful motion beginning at 50 degrees. The Veteran had no additional loss of function or range of motion following repetitive-use testing. The Veteran had normal muscle strength and reflexes, and he had no atrophy. Sensory testing was also normal, and the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy or nerve root involvement. He also did not have ankylosis. The examiner indicated that the Veteran’s service-connected lumbar spine disability would have a significant impact on his ability to work at gainful employment in an occupational environment, but that he would be able to do sedentary, desk-type jobs in an office setting with no issues. The Veteran reported that he experienced flare-ups of his lumbar spine symptoms, but when asked to describe the impact of the flare-ups stated only that his pain was aggravated by prolonged standing, walking, exercise, and lifting weights, and was alleviated by resting and taking medications. At a February 2016 VA examination, the Veteran reported that he had transitioned to a supervisory job one year prior because he could no longer perform the duties of a letter carrier. The Veteran also reported that he could no longer hunt, fish, or play sports with his children due to his back pain. Initial range-of-motion testing revealed forward flexion to 45 degrees. The examiner noted that the Veteran’s limited range of motion would prevent him from bending over to pick up objects and that he would have difficulty putting on shoes and socks due to the disability. The Veteran did not show evidence of pain with weight-bearing. He denied flare-ups of his lumbar spine symptoms. The Veteran had no additional loss of function or range of motion following repetitive-use testing. The examiner opined that the pain, weakness, fatigability, or incoordination would not limit the Veteran’s functional ability with repeated use over a period of time. The Veteran exhibited normal muscle strength with no atrophy. His reflexes were normal except for in the left ankle where reflexes were absent. Sensory testing was normal for the right lower extremity. However, in the left lower extremity, the Veteran had mild intermittent pain and mild paresthesias and/or dysesthesias. The examiner found that the Veteran had mild incomplete paralysis of the left sciatic nerve. The Veteran did not have ankylosis. The examiner noted that the Veteran had intervertebral disc syndrome, but that the condition had not caused episodes of acute signs and symptoms requiring bed rest prescribed by a physician and treatment by a physician. The October 2019 Joint Motion, granted by the Court in a November 2019 Order, found that the February 2016 VA examination was inadequate because the examiner failed to indicate at what point in the Veteran’s range of motion he experienced functional loss due to pain and because the examiner also failed to include the specific testing required under 38 C.F.R. § 4.59 as discussed in Correia, supra. Specifically, the Joint Motion noted that the February 2016 examiner failed to test for pain throughout the range of motion in both active and passive motion, in non-weight bearing, and with the range of the opposite undamaged joint. In response to the Joint Motion, the Board remanded the matter for an additional VA examination in November 2020. Pursuant to this remand, the Veteran was provided with another VA examination in December 2020, at which time he was diagnosed as having intervertebral disc syndrome, degenerative disc disease of the lumbar spine, and left lower extremity radiculopathy. The Veteran subjectively described aching low back pain that would increase to a dull aching, sharp, shooting pain that varied depending on activity, as well as occasional radiating pain down his left leg to all toes. The Veteran additionally reported flare-ups of lumbar spine symptomatology which occurred approximately every other month (lasting four to five days) and which caused diminished function. The Veteran indicated that he remained home until his spasms and the associated tight pain improved, and that he required increased visits to the chiropractor during flare-ups. Initial range-of-motion testing revealed forward flexion to 40 degrees. The Veteran did not show evidence of pain with weight-bearing. The Veteran was able to perform repetitive-use testing with at least three repetitions, and with no additional loss of function or range of motion after three repetitions. Although the Veteran was not being examined immediately after repetitive use over time, the examiner indicated that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. Specifically, the examiner indicated that pain and lack of endurance significantly limited functional ability with repeated use over a period of time, although this did not alter the previous range of motion findings. Similarly, although the Veteran was not being examined during a flare up, the examiner indicated that the examination was medically consistent with the Veteran's statements describing functional loss during flare up. Specifically, the examiner indicated that pain, weakness, and lack of endurance significantly limited functional ability with flare ups, resulting in the Veteran’s forward flexion being additionally limited to 35 degrees. Additionally, the examiner indicated that the Veteran exhibited guarding resulting in abnormal gait or abnormal spine contour. The Veteran exhibited normal muscle strength, with no evidence of muscle atrophy. Reflex testing and sensory testing were within normal limits for the bilateral lower extremities. However, the straight leg raising test produced positive results for the left leg. Additionally, although the Veteran’s right lower extremity was within normal limits, his left lower extremity exhibited mild intermittent pain, moderate paresthesias and/or dysesthesias, and mild numbness involving the sciatic nerve; however, the examiner characterized the severity of his left lower extremity radiculopathy as only “mild” in severity. The Veteran did not have ankylosis. The examiner noted that the Veteran had intervertebral disc syndrome, but that the condition had not caused episodes of acute signs and symptoms requiring bed rest prescribed by a physician and treatment by a physician. The functional impact of the Veteran’s back symptomatology included an inability to stand or walk for more than 30 minutes without position changes, an inability to lift over 20 lbs. for job tasks such as stocking shelves, and an inability to sit for more than 15 minutes without position changes. With respect to the Correia factors, the examiner indicated that there was objective evidence of pain when the back was used in non-weight bearing, while passive range of motion for the back could not be performed or was not medically appropriate. Finally, the December 2020 examiner noted that the previous December 2012 examination described flare-ups as pain aggravated by prolong standing, walking, exercise, and lifting weights, and alleviated by resting and medication; however, the December 2020 examiner clarified that this was more of a description of symptoms associated with repetitive motion over time rather than symptoms associated with a flare up. Thus, throughout the relevant rating period, the Veteran’s degenerative disc disease of the lumbar spine was manifested by pain and limited motion with forward flexion limited to greater than 30 degrees. In addition, there is no indication in the record that the Veteran had ankylosis of any portion of the spine. Under Diagnostic Code 5242, a higher rating of 40 percent is not for assignment unless forward flexion of the thoracolumbar spine is limited to 30 degrees or less, and higher ratings of 50 percent and 100 percent are not for assignment unless there is ankylosis of the spine. Thus, the range-of-motion measurements and symptoms of the Veteran’s degenerative arthritis of the lumbar spine recorded during the relevant rating period are consistent with a rating of 20 percent, and no higher, under Diagnostic Code 5242. The Board has considered whether the Veteran was entitled to a higher rating at any time during the relevant period under the criteria set forth in DeLuca. The March 2011, December 2012, February 2016, and December 2020 VA examiners found that, following repetitive-use testing, the Veteran did not have additional functional loss due to pain, fatigability, incoordination, pain on movement, or weakness. In addition, the February 2016 VA examiner opined that the Veteran would not have additional functional loss upon repetitive use over time. Although the December 2020 VA examiner indicated that pain and lack of endurance significantly limited functional ability with repeated use over a period of time, these limitations did not alter the previous range of motion findings. See DeLuca, 8 Vet. App. 202. The Board finds that the Veteran’s complaints of painful motion of the spine did not impair his functioning to a degree such that the criteria for a rating in excess of 20 percent were more closely approximated. The Board also has considered whether the Veteran was entitled to a higher rating at any time during the relevant period based on additional functional limitation during flare-ups. However, he denied any such flare-ups at the March 2011 and February 2016 VA examinations. At the December 2012 VA examination, he endorsed flare-ups that impacted the function of the thoracolumbar spine, but when asked to describe the functional limitations, he described only increases in pain due to certain activities. At that time, he did not indicate that he had additional loss of range of motion or other such functional loss during flare-ups that would be equivalent to forward flexion limited to 30 degrees or less or to ankylosis of the thoracolumbar spine. Although the December 2020 VA examiner indicated that pain, weakness, and lack of endurance significantly limited functional ability with flare ups, this resulted in forward flexion being additionally limited to 35 degrees. A 40 percent rating requires evidence of limitation of forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. As such, the Board finds that the evidence does not show the Veteran experienced additional functional limitation during flare-ups in his lumbar spine symptoms to a degree such that the criteria for a rating in excess of 20 percent under Diagnostic Code 5242 were more closely approximated. Concerning the range-of-motion findings of the lumbar spine, the Board notes that the December 2020 VA examination report indicated that although there was no objective evidence of pain when the back was used in weight-bearing, there was objective evidence of pain when the back was used in non-weight bearing. See Correia, supra. However, there was no indication that this objective evidence of pain when the back was used in non-weight bearing resulted in any additional limitation of range of motion or functional impairment. Additionally, the December 2020 examiner indicated that passive range of motion for the back could not be performed or was not medically appropriate. The fundamental issue in view of Correia is that VA examinations must include adequate joint testing for pain. Generally, active range-of-motion testing produces more restrictive results than passive range-of-motion testing, in that passive range-of-motion testing requires the physician to force the joint through its motions. As such, the Board has based its findings on the active range-of-motion testing results during the period on appeal. The Board finds that those findings have not shown limitation of forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine at any time during the relevant rating period. Additionally, the February 2016 VA examiner diagnosed the Veteran with left lumbar radiculopathy. The Veteran has since been separately service connected for that disability, which is rated as 10 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8520, effective February 18, 2016, the date of the February 2016 VA examination. The record does not show that the Veteran’s left lumbar radiculopathy was manifested prior to that date or that the condition has more closely approximated the criteria for a higher rating under Diagnostic Code 8520 at any time during the relevant period. The evidence dating prior to the February 2016 VA examination does not show that the Veteran was diagnosed with the condition. Indeed, the Veteran exhibited normal sensory examinations at the March 2011 and December 2012 VA examinations. Moreover, the February 2016 VA examiner opined that the condition manifested to an extent comparable to mild incomplete paralysis of the left sciatic nerve. The most recent VA examiner in December 2020 also characterized the severity of his left lower extremity radiculopathy as merely “mild” in severity, and indicated that it was manifested by mild intermittent pain, moderate paresthesias and/or dysesthesias, and mild numbness involving the sciatic nerve. Although the examiners’ use of the term “mild” is not dispositive of the issue, the Board finds it to be persuasive in view of the other evidence of record and concludes that the Veteran’s left lumbar radiculopathy is most appropriately characterized as mild in severity from February 18, 2016, to the present. As such, under Diagnostic Code 8520, mild incomplete paralysis of the sciatic nerve warrants a rating of 10 percent and no higher. The Veteran’s symptoms have not been shown to more nearly approximate left lumbar radiculopathy that is of average or extremely intense severity such that a higher rating for “moderate” or “severe” left lumbar radiculopathy is warranted. Neither the Veteran nor his representative have raised any other issues with the rating for the service-connected degenerative disc disease of the lumbar spine, nor have any other such issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). The Board therefore finds that the criteria for entitlement to an initial rating in excess of 20 percent for degenerative disc disease of the lumbar spine have not been met at any time since February 1, 2011. The preponderance of the evidence is against the assignment of a higher initial rating, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; see also Gilbert, 1 Vet. App. 49. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals CHERYL L. MASON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anthony M. Flamini 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.