Citation Nr: 21025331 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 15-41 177 DATE: April 27, 2021 ORDER Entitlement to a rating in excess of 10 percent for lumbar spondylosis with degenerative arthritis prior to December 7, 2020 is denied. Entitlement to a rating in excess of 40 percent for lumbar with degenerative arthritis from December 7, 2020 is denied. FINDINGS OF FACT 1. Prior to December 7, 2020, the Veteran’s lumbar spondylosis with degenerative arthritis was manifested by forward flexion of the thoracolumbar spine greater than 60 degrees, no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis and a combined range of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees. 2. From December 7, 2020, the Veteran’s lumbar spondylosis with degenerative arthritis was manifested by forward flexion of the thoracolumbar spine 30 degrees or less. CONCLUSIONS OF LAW 1. Prior to December 7, 2020, the criteria for entitlement to a rating in excess of 10 for lumbar spondylosis with degenerative arthritis have not been met. 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.40, 4.71a, Diagnostic Code (DC) 5242. 2. From December 7, 2020, the criteria for entitlement to a rating in excess of 40 for lumbar spondylosis with arthritis have not been met. 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.40, 4.71a, Diagnostic Codes (DC) 5237, 5242, 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2006 to December 2012. This matter comes to the Board of Veterans’ Appeals (Board) from a November 2013 rating decision by a Veterans Affairs (VA) Regional Office (RO). The matter was originally addressed by the Board in an August 2018 remand in pursuit of additional development. The case was returned to the Board but remanded once more in a November 2020 decision as the August 2018 remand directives were not substantially followed. Prior to the case’s return to the Board, the RO published a February 2021 rating decision granting the Veteran an increased rating for his lumbar spondylosis with degenerative arthritis from 10 percent to 40 percent effective December 7, 2020. The matter is once again for the Board for consideration. Disability Ratings—Laws and Regulations Disability evaluations (ratings) are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.  In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 38 C.F.R. §§ 4.1, 4.2, 4.10.  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. Reasonable doubt regarding the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3.  Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007).  Lumbar Spine Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) (for DCs 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula)). Ratings under the General Rating Formula are made 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. The disabilities of the spine that are rated under the General Rating Formula include vertebral fracture or dislocation (DC 5235), sacroiliac injury and weakness (DC 5236), lumbosacral or cervical strain (DC 5237), spinal stenosis (DC 5238), unfavorable or segmental instability (DC 5239), ankylosing spondylitis (DC 5240), spinal fusion (DC 5241), and degenerative arthritis of the spine (DC 5242) (for degenerative arthritis of the spine, see also DC 5003). The General Rating Formula provides 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. A 40 percent rating is assigned forward flexion of the thoracolumbar spine 30 degrees or less; or, unfavorable 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 entire spine. The Notes following the General Rating Formula provide further guidance in rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note (2) 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 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. DC 5243 provides that IVDS is to be rated either under the General Rating Formula or under the IVDS Formula, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The IVDS Formula provides a 10 percent rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent rating for IVDS 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 for IVDS with 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 for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) to DC 5243 provides that, for purposes of ratings under DC 5243, 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. Note (2) provides that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a. 1. Entitlement to a rating in excess of 10 percent for lumbar spondylosis with arthritis prior to December 7, 2020. In this matter, the Veteran is currently in receipt of a 10 percent rating for the period prior to December 7, 2020 in accordance with DC 5242 as lumbar spondylosis with degenerative arthritis. Of note, the Veteran did not demonstrate IVDS during the appeal period, such that the Formula for Rating IVDS Based on Incapacitating Episodes does not provide an avenue upon which this appeal may be granted. See October 2013 and September 2015 VA examinations (denying IVDS in the Veteran). As mentioned above, a 20 percent rating is warranted with evidence of 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. Upon review of the record, a rating of 20 percent is not warranted for the Veteran’s lumbar spondylosis without radiculopathy prior to December 7, 2020. The Veteran was afforded a VA examination in October 2013. He denied flare-ups. The clinician documented the Veterans ranges of motion: forward flexions 0 to 75 degrees, extension 0 to 15 degrees, right lateral flexion 0 to 25 degrees, left lateral flexion 0 to 20 degrees, right lateral rotation 0 to 30 degrees, and left lateral rotation 0 to 30 degrees. The range of motion stayed the same after repeated use with functional loss in the form of less movement than normal, weakened movement, excess fatigability, and pain on movement. The clinician noted localized tenderness and the absence of guarding, muscle spasm, and IVDSs. November 2013 VA treatment records no spinal or paraspinal tenderness to palpation or lost strength. In his August 2014 Notice of Disagreement, the Veteran stated that his lower back was getting worse and that sitting in a car and office chair over an hour was painful. He indicated he used a back brace to assist with his disability. VA medical records from August 2015 show the Veteran going to the emergency room due to low back pain occurring after the Veteran went to a chiropractor. The Veteran was afforded another VA examination in September 2015. The Veteran endorsed flare-ups due to pain on lifting and bending. Range of motion studies showed forward flexion 0 to 70 degrees, extension 0 to 25 degrees, right lateral flexion 0 to 30 degrees, left lateral flexion 0 to 30 degrees, right lateral rotation 0 to 30 degrees, and left lateral rotation 0 to 30 degrees. The Veteran was able to complete repetitive use testing without additional loss of range of motion. Pain was noted that caused functional loss. The VA examiner was unable to estimate ranges of motion for repeated use over time and during flare-ups without resorting to speculation. The clinician cited weakened movement or peripheral nerve injury and disturbance of locomotion but found no guarding, muscle spasm, ankylosis, or IVDS. Furthermore, testing was negative for radiculopathy. The VA examiner indicated that the Veteran’s back disability impacted his ability to work as he was precluded from heavy lifting and unable to sit or stand for long periods of time due to pain. A physical therapy initial evaluation took place in November 2018 where the Veteran’s pre-treatment ranges of motion were recorded: flexion 45 percent, extension 25 percent, left rotation 55 percent, right rotation 55 percent, left side bending 45 percent, and right-side bending 45 percent. A VA examination was also performed in July 2019. The Veteran denied flare-ups but reported pain with prolonged standing. The Veteran’s ranges of motion were forward flexions 0 to 70 degrees, extension 0 to 30 degrees, right lateral flexion 0 to 25 degrees, left lateral flexion 0 to 25 degrees, right lateral rotation 0 to 25 degrees, and left lateral rotation 0 to 25 degrees. There was no evidence of radiculopathy. The Veteran was able to complete repetitive use testing without additional loss of unction or range of motion. Again, no guarding, muscle spasm, ankylosis, or IVDS was documented. An August 2019 VA treatment record documented the Veteran presenting with normal posture and an even stride and cadence gait. There was no objective evidence of pain with range of motion testing. No evidence of weakened movement, excess fatigability, or incoordination based on his physical examination. The VA examiner indicated that the Veteran’s back disability did not impact his ability to work. In summary of the evidence, the Veteran’s October 2013, September 2015, and July 2019 VA examinations show his forward flexion range of motion greater than 60 degrees, his combined range of motion of the thoracolumbar spine greater than 120 degrees, no guarding or muscle spasm, no IVDS, and no ankylosis. VA treatment records do not offer specific range of motion findings but document the Veteran having normal posture and an even stride and cadence gait. See August 2019 VA treatment record. The Veteran’s lay statements indicate he believes his disability is getting worse. Private treatment records from his physical therapist in November 2018 offer range of motion findings in percentages, not degrees and as a result are not adequate for rating purposes. The Board finds the VA examinations are competent, credible, and are probative. VA treatment records are afforded the same findings. While the Veteran may believe that his lumbar spondylosis worsened, he has not demonstrated that he has the medical knowledge, training, or experience in assessing the severity of lumbar disabilities. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). The private treatment records are found competent and credible but their weight minimal, as it is unclear how the range of motions measured in percentages converts to those in the General Rating Formula, degrees. As such, the Board finds that a rating in excess of 10 percent for lumbar spondylosis without radiculopathy prior to December 7, 2020 is not warranted. 2. Entitlement to a rating in excess of 40 percent for lumbar spondylosis with arthritis from December 7, 2020. From December 7, 2020, the Veteran is currently in receipt of a 40 percent rating in accordance with DC 5010-5424 as lumbar spondylosis with degenerative arthritis. Of note, the Veteran did not demonstrate IVDS during the appeal period, such that the Formula for Rating IVDS Based on Incapacitating Episodes does not provide an avenue upon which this appeal may be granted. See December 2020 VA examination (denying IVDS in the Veteran). As mentioned above, a 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. The Veteran was afforded a VA examination in December 2020. The clinician made the specific finding of no ankylosis and no IVDS. Furthermore, during flare-ups and after repeated use over time, the Veteran still retains some range of motion. No other evidence after December 7, 2020 indicate the Veteran had unfavorable ankylosis of the entire thoracolumbar spine. As such, the Board finds that a rating in excess of 40 percent for lumbar spondylosis without radiculopathy from December 7, 2020 is warranted. R.R. WATKINS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Lee Feldman, 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.