Citation Nr: 21025730 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 15-39 945 DATE: April 28, 2021 ORDER A rating in excess of 40 percent for a recurrent low back condition with lumbar disc disease, status post discectomy with scar, is denied. FINDING OF FACT None of the competent and probative evidence establishes that the Veteran’s low back disability has been manifested by unfavorable ankylosis, or the functional equivalent thereof, at any time pertinent to the period on appeal. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for a low back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from September 2000 to June 2007. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In February 2019, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. In December 2020, other issues developed for appeal were addressed by a Veterans Law Judge who conducted a hearing on those issues in August 2012. One issue was granted, in part, and the others were remanded for additional development. Those issues have not yet been returned to the Board. They will be the subject of a separate decision, if otherwise in order. In March 2021, the Veteran testified at a virtual Board hearing before another Veterans Law Judge regarding still other issues developed for appeal. Those issues will also be the subject of a separate Board decision. The issue presently on appeal was previously before the Board in April 2020, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. In its April 2020 remand, the Board directed the AOJ to obtain updated VA treatment records and to afford the Veteran a new VA examination in connection with his claim. In April, May, and August 2020, the AOJ obtained updated VA treatment records. In August 2020, VA afforded the Veteran a new VA examination. The Board finds that the AOJ has substantially complied with the April 2020 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that in a September 2020 rating decision, during the pendency of the Veteran’s appeal, the AOJ granted service connection for right lower extremity radiculopathy and for a residual scar associated with his low back disability. If the Veteran wishes to appeal the ratings and/or effective dates assigned for those awards, he may do so by filing a VA Form 10182 within one year of the date of mailing of notice of that decision, which would be October 29, 2021. A rating in excess of 40 percent for a recurrent low back condition with lumbar disc disease, status post discectomy with scar, is denied. By way of history, in a January 2010 rating decision, the Veteran was initially granted service connection and assigned a 40 percent rating for his low back disability, effective June 27, 2007. In September 2011, he filed for an increased rating. In its May 2012 rating decision, the RO continued the Veteran’s rating at 40 percent. He contends that the disability warrants a higher rating. Specifically, he contended at his February 2019 hearing that his condition had worsened and that he had been given a back brace, a cane, “everything,” and that he was having problems using the restroom and was losing control of his bowels from time to time. Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If 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. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Amendments to the criteria for rating disabilities of the spine were published in November 2020. See Schedule of Ratings: Musculoskeletal System, 85 Fed. Reg. 76,453, 76,463 (November 30, 2020). The amendments were made effective as of February 7, 2021, and apply to claims, such as the Veteran’s, that were pending before VA as of that date, with the provision that the more favorable of the old and new criteria are to be applied. Throughout the appellate period, the Veteran’s lumbar spine disability has been evaluated pursuant to DC 5242 for degenerative arthritis of the spine. The recent amendments to the criteria for rating disabilities of the spine did not change the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. The former version of DC 5242 for degenerative arthritis of the spine refers adjudicators only to DC 5003 for degenerative arthritis. Under the former version of DC 5003, if a Veteran had x-ray evidence to establish degenerative arthritis of the spine with noncompensable limitation of motion, he or she was entitled to a 10 percent disability rating for each major joint or group of minor joints affected by limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. The new version of DC 5242 for degenerative arthritis or degenerative disc disease other than intervertebral disc syndrome (IVDS) refers adjudicators to both DC 5003 and DC 5010. The current regulation differentiates between non-post-traumatic arthritis (DC 5003) and post-traumatic arthritis (DC 5010). The current version of the regulation does not change how non post-traumatic arthritis is rated under DC 5003. The current version instructs adjudicators to rate post-traumatic arthritis under DC 5010 as limitation of motion, dislocation, or other specified instability under the affected joint. The foregoing evaluation criteria are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine. As noted by the RO in its January 2010 rating decision, the 40 percent rating for the Veteran’s lumbar spine disability has been assigned based on limitation of motion. Based on a review of the evidence, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 40 percent. The Veteran was afforded a VA examination in connection with his claim in January 2012. Range of motion testing was normal, as were the Veteran’s strength, reflexes, and sensation. There was no pain to palpation, straight leg raise testing was negative, there was no radiculopathy, atrophy, or IVDS, and the Veteran did not use any assistive devices at that time. The examiner indicated that the Veteran did not have any other neurologic abnormalities related to the spine such as bowel or bladder problems, and imaging showed arthritis. The Veteran was afforded a second VA examination in August 2013. The examiner noted that the Veteran reported flare-ups which he described as chronic pain at the beltline, without radiation, that slightly limited activity. On range of motion testing, the Veteran had forward flexion to 80 degrees, extension to 20 degrees, and lateral flexion and rotation bilaterally to 25 degrees each. There was no change in range of motion testing after repetitive use testing. The Veteran’s strength, reflexes, and sensation were once again normal, there was no atrophy or radiculopathy, and straight leg testing was again negative. The examiner indicated that the Veteran had IVDS, but further indicated that he had had no incapacitating episodes over the past 12 months. The examiner noted that the Veteran did not have any other neurologic abnormalities related to the spine such as bowel or bladder problems, that he did not use assistive devices at that time, and that the condition did not impact his ability to work. A November 2013 private treatment record indicated that the Veteran’s low back pain was moderate in intensity, and further indicated that pain was present all the time. On examination, there was tenderness to the left side of the lumbar area, and the Veteran was diagnosed with acute lumbosacral sprain, muscle spasm, and disc herniation. A December 2013 VA treatment record shows that range of motion was good in the Veteran’s back, shoulders, and hips. The Veteran was afforded a third VA examination in connection with his claim in April 2016. The examiner diagnosed degenerative arthritis of the spine and recorded the Veteran’s report that he had flare-ups and pain that was worse after long distance walking and standing. On range of motion testing, the Veteran had forward flexion to 55 degrees, extension to 20 degrees, lateral flexion to 20 degrees bilaterally, and lateral rotation to 25 degrees bilaterally. There was also evidence of functional loss and pain with weight-bearing, and the Veteran had some decreased sensation, strength, and reflexes, though straight leg raise testing was negative. The examiner indicated that there was no ankylosis of the spine and no other neurologic abnormalities related to the spine including bowel or bladder problems. While the examiner further indicated that the Veteran had IVDS, there were no episodes of IVDS that required bedrest. Finally, the Veteran was noted to use a brace regularly. A July 2017 VA treatment record shows diagnoses of osteoarthritis and chronic low back pain, and that the Veteran ambulated with a walker at that time. The provider also noted that a December 2016 MRI (magnetic resonance imaging) of the lumbar spine showed discogenic degeneration of the lower spine with severe narrowing at L4-5. In August 2017, the Veteran underwent a VA examination in connection with a claim regarding non-degenerative arthritis. On examination, he had full range of motion in all joints, though his gait was waddling and mildly antalgic. He also had normal strength and no atrophy. The Veteran was afforded a fourth VA examination in connection with his claim in August 2020. The examiner noted that diagnoses included degenerative arthritis of the spine and recurrent low back pain with lumbar disc disease status-post discectomy with scar, as well as right lower extremity radiculopathy. The examiner noted the Veteran’s report of flare-ups, which he described as being intense pain, not common pain, which lasted for one week. The Veteran further reported that these occurred once every four to six months, and he described them as severe. Initial range of motion testing was all normal, but the examiner noted that the Veteran had pain that caused functional loss in all range of motion testing performed. There was no evidence of pain with weight-bearing, but there was tenderness to palpation in the lower spine, which the examiner rated as mild. On repetitive use testing, the Veteran had forward flexion only to 10 degrees, extension only to 10 degrees, lateral flexion bilaterally only to 5 degrees, and lateral rotation bilaterally to 20 degrees. The examiner indicated that pain was the factor that caused the additional functional loss on repetitive use testing, and described the Veteran’s additional functional loss on both repetitive use testing and during flare-ups in terms of range of motion in the same terms: forward flexion to 10 degrees, extension to 10 degrees, lateral flexion bilaterally to 5 degrees, and lateral rotation bilaterally to 20 degrees. The Veteran did not have guarding or muscle spasm of the spine, his strength was normal except for 4/5 in hip flexion bilaterally, there was no atrophy, reflexes were decreased only in the left lower leg/ankle and left foot/toes, and there was no ankylosis of the spine. While straight leg raise testing was positive and the examiner indicated that there was radiculopathy, she further indicated that there were no additional neurologic abnormalities or findings related to the spine, including bowel or bladder problems. She indicated that the Veteran did not have IVDS, and also noted that he used a brace and a cane constantly and a walker regularly. Finally, the examiner noted that passive range of motion testing was not performed as it was not feasible to do that in a safe and reasonable manner, and that non-weight bearing assessment was not applicable. In light of the above, The Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 40 percent for the Veteran’s low back disability for the entire period on appeal. Simply put, even considering the Veteran’s complaints of pain and the evidence showing significant limitation of motion with and without flare-ups and on repetitive testing, none of the evidence establishes that his disability has been manifested by unfavorable ankylosis of the entire thoracolumbar spine, or the functional equivalent thereof, which is required for a 50 percent rating. Consideration has also been given to an increased evaluation for the Veteran’s lumbar spine disability under the formula for rating IVDS. However, the medical evidence does not indicate, and the Veteran does not contend, that he has been prescribed bed rest by a physician based on incapacitating episodes. While the August 2013 and April 2016 VA examiners both indicated that the Veteran had IVDS, neither indicated that he had had any incapacitating episodes, which is a requirement for a compensable rating under the formula for rating IVDS. The Board has also considered the Veteran’s contentions concerning his regular use of assistive devices. As noted above, however, the rating criteria are designed to take into account symptoms such as pain, whether or not it radiates, as well as symptoms such as stiffness or aching. The Board has further considered the Veteran’s contentions regarding possible bowel problems caused by his back disability, but finds that the evidence does not support a separate rating on that basis. None of the objective evidence indicates that the Veteran’s low back disability causes bowel or other neurological impairment aside from radiculopathy, for which the Veteran has already been awarded service connection. The January 2012, August 2013, April 2016, and August 2020 VA examiners all specifically found that the Veteran’s low back disability did not cause any other neurologic abnormalities, including bowel or bladder problems. While the Veteran is competent to report symptoms he experiences, such as problems using the restroom and losing control of his bowels, he is not competent to link those problems to his low back disability due to the medical complexity of the matter. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also notes that the Veteran is currently service-connected for Crohn’s disease with rectal sparring, gastroesophageal reflux disease (GERD), and erosive gastritis. While the Veteran’s claimed bowel problems could therefore possibly be related to his Crohn’s disease, the Board need not make such a determination for purposes of this appeal. The competent and probative evidence of record (all four VA examinations) demonstrates that the Veteran’s low back disability does not cause bowel problems. Simply put, there is no evidence in the claims file to support a rating in excess of 40 percent for the Veteran’s low back disability. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against a higher rating, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The appeal must be denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Oldroyd, 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.