Citation Nr: 21025770 Decision Date: 04/29/21 Archive Date: 04/28/21 DOCKET NO. 16-04 191 DATE: April 29, 2021 ORDER Entitlement to a rating in excess of 10 percent, prior to December 6, 2019, for degenerative arthritis of the thoracolumbar spine with history of lumbar spine disc bulge at L4-L5 (lumbar spine disability), and in excess of 20 percent thereafter is denied. FINDING OF FACT 1. Prior to December 6, 2019, the Veteran’s lumbar spine disability was manifested by chronic pain and limited motion with flexion greater than 60 degrees, and no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 2. Since December 6, 2019, the Veteran’s lumbar spine disability has been manifested by chronic pain and limited motion with forward flexion greater than 30 degrees, but not greater 60 degrees, and no evidence of favorable ankylosis. CONCLUSION OF LAW The criteria for a rating higher than 10 percent for a lumbar spine disability, prior to December 6, 2019, and higher than 20 percent, thereafter, have not been met. 38 U.S.C. § 1155, 5103(a), 5103A, 5107(b); 38 C.F.R. § 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5243, 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1987 through April 1991, May 1995 through October 1999, with additional active duty for training from July 1983 through November 1983. This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from March 2014 and August 2020 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Board remanded these matters to the Agency of Original Jurisdiction (AOJ) for additional development. The appeal has since returned to the Board. Entitlement to a rating in excess of 10 percent, prior to December 6, 2019, for degenerative arthritis of the thoracolumbar spine with history of lumbar spine disc bulge at L4-L5 (lumbar spine disability), and in excess of 20 percent thereafter Disability evaluations are determined by the application of the VA 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. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability shall be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flareups. 38 C.F.R. § 4.14. Additionally, the Court of Appeals for Veterans Claims has held that “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” See Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain may result in functional loss, but only if it limits the ability to “perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance.” Id. (quoting 38 C.F.R. § 4.40). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. See 38 C.F.R. § 4.45. The Veteran contends that he is entitled to increased ratings for his service-connected lumbar spine disability. Briefly, a March 2014 rating decision continued a previously assigned 10 percent disability rating for the Veteran’s lumbar spine disability. Thereafter, an August 2020 rating decision granted an increased 20 percent rating for the Veteran’s lumbar spine disability, effective December 6, 2019. He has appealed the assigned ratings. The Veteran’s lumbar spine disability was first granted a 10 percent disability evaluation under DC 5243. In the August 2020 rating decision, he was granted a 20 percent disability evaluation under DC 5242. The General Rating Formula provides for the following disability ratings for diseases or injuries of the spine, 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. It applies to DCs 5235 to 5243 unless the disability rated under Diagnostic Code 5243 is evaluated under the formula for rating Intervertebral Syndrome (IVDS) based on Incapacitating Episodes. For purposes of this case, the Board notes that under the General Rating Formula for Diseases and Injuries of the Spine, ratings are assigned, in pertinent part, under DC 5243 and 5242. DC 5242 covers degenerative arthritis of the spine and is as follows: 10 percent - forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 20 percent - 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 spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; 40 percent - forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; 50 percent - Unfavorable ankylosis of the entire thoracolumbar spine; and 100 percent- Unfavorable ankylosis of the entire spine. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Alternatively, disabilities involving disc disease may be rated under the Formula for Rating IVDS Based on Incapacitating Episodes. That formula provides a 10 percent disability rating for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for 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 disability rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. Effective February 7, 2021, the Schedule of Ratings for the Musculoskeletal System was revised. Pertinent to this case, DC 5242 was modified from “degenerative arthritis of the spine” to “degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010).” In addition, DC 5243 (intervertebral disc syndrome) was revised to specify that that diagnostic code was to be assigned only when there was disc herniation with compression and/or irritation of the adjacent nerve root, and that DC 5242 was to be used for all other disc diagnoses. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DCs 5242, 5243). As the rating criteria revisions have no practical effect on the Veteran’s underlying claim, and the Veteran has been rated under DC 5242 since the effective date of regulatory change, these changes to the rating criteria need not be discussed here because they do not affect or allow for a more favorable outcome in this case. Turning to the evidence of record, treatment notes in July 2013 contain a general examination of the Veteran which showed normal back findings, including full range of motion and no midline lumbar tenderness. At a February 2014 VA examination, the Veteran complained of sharp pain in his lumbar spine that radiated to his right hip. He rated his pain as a five on 10-point scale. His pain would get worse about four times in a day where he would have to sit down. On physical examination, forward flexion was 0 to 70 degrees, extension was 0 to 20 degrees; left and right lateral flexion was to 20 degrees; and left and right lateral rotation was 0 to 20 degrees. The Veteran had objective evidence of pain at all end stage range of motions. There was no loss of range of motion with repetitive testing. He did not have localized tenderness or pain to palpation. Additionally, there were no muscle spasms or guarding resulting in abnormal gait or spinal contour. There was also no ankylosis or IVDS. However, the Veteran did have radiculopathy in the right lower extremity, for which service connection has already been established. The examiner opined that additional functional loss during flareups or with repeated use over time could not be estimated without resorting to mere speculation. The examiner explained that the Veteran was not having a flareup at the time of the examination. At a December 2019 a VA examination, the Veteran again endorsed sharp pain in his lower back that occasionally radiates to his bilateral extremities. He reported that his pain was worse with prolonged sitting, standing, walking and lifting over 25 pounds. Flareups were documented and described as moderate to severe. His flareups occurred weekly. On physical examination, forward flexion was 0 to 60 degrees, extension was 0 to 10 degrees; left lateral flexion to 20 degrees; right lateral flexion was to 15 degrees; and left and right lateral rotation was 0 to 20 degrees. There was evidence of pain on examination and with weight-bearing. There was localized tenderness, or pain on palpation. Additional functional loss with repetitive use was recorded with flexion limited to 50 degrees, extension limited to 5 degrees, right lateral flexion limited to 15 degrees, left lateral flexion limited to 20 degrees, right lateral rotation limited to 15 degrees and left lateral rotation limited to 20 degrees. The examiner opined that estimated additional functional loss during flareups and with repeated use over time would produce limited range of motion as consistent with those noted after repetitive movements. There was no muscle spasms or guarding resulting in abnormal gait or spinal contour. There was no ankylosis or IVDS. However, there was radiculopathy to both lower extremities. The Veteran had objective evidence of pain with passive range of motion and with non-weightbearing status. Treatment notes of record documented continued treatment for a lumbar spine disability but showed no greater limitations than documented in the VA examinations. Based on the aforementioned, prior to December 6, 2019, the most probative medical evidence of record demonstrates that the Veteran’s lumbar spine disability manifested with symptoms that most nearly approximate those associated with the 10 percent rating. Although the Veteran consistently endorsed chronic back pain, he had flexion of at least 70 degrees, and no additional limitation of motion after repetitive use. To assign a higher disability rating, the Veteran’s flexion would have to have been greater than 30 degrees, but no greater than 60 degrees. The evidence of record does not support a finding that there are instances where he experienced functional loss consistent with a 20 percent disability rating, prior to December 6, 2019. However, at the December 2019 VA examination, the Veteran’s forward flexion was limited to 60 degrees. With repetitive movements, his flexion was further limited to 50 degrees. Thus, the most probative medical evidence of record demonstrates that the Veteran’s lumbar spine disability manifested with symptoms more nearly approximating those associated with the 20 percent rating since December 2019. The limitation exhibited on range of motion testing is more akin to the severity encompassed in a rating of 20 percent. To assign a higher disability rating, the Veteran’s flexion would have to have been limited to less than 30 degrees or resulted in favorable ankylosis. This is not shown by the probative evidence of record, or after consideration of any additional functional impairment during repeated use over time or during flareups. To this point, the examiner opined that with repeated use over time and doing flareups, his flexion was limited only to 50 degrees. Further, although he was noted in the February 2014 VA examination to have IVDS, he did not have periods of doctor prescribed bed rest due to his lumbar spine disability. In other words, a higher rating for incapacitating episodes is not warranted. The Board finds that a rating in excess of 10 percent, prior to December 6, 2019; and excess of 20 percent thereafter, for a lumbar spine disability is not warranted. In so finding, the Board has considered the Veteran’s report of flareups. The guidance on how to evaluate flareups has not been particularly clear. As a consequence, it is determined that the holding in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), will be expanded and flareups must be quantifiable and must result in limitation of motion of function beyond that contemplated by the already provided evaluation. Additionally, because there is a regulation addressing the stabilization of ratings, flareups must be of such length as to establish that the overall impairment is more severe than currently evaluated. As addressed above, the Veteran’s reports of flareups have been considered. However, the statements made in this case do not show that any flareups or repeated use over time have additionally limited function in a quantifiable way beyond the estimations found in the December 2019 VA examination, nor do they show that they are of such length or duration that a higher or staged rating would not violate the rule regarding stabilization of ratings. In particular, the VA examiners attempted to elicit information from the Veteran in this regard, and he stated that he generally had increased pain with prolonged activity. The December 2019 VA examiner addressed these reports of increased pain during flareups and with repeated use over time and opined that the Veteran would achieve forward flexion to 50 degrees during these time periods. During the period at issue, there has been no representation, in lay statements or medical evidence, that flareups or repeated usage over time would decreased his range of motion in his lumbar spine so greatly that a higher rating would be warranted at any time during the period on appeal. The 10 and 20 percent evaluations for the timeframes on appeal for the lumbar spine disability adequately portray any functional impairment, pain, and weakness that the Veteran experiences as a consequence of use of his spine. See DeLuca, supra; see also Mitchell, supra; and 38 C.F.R. §§ 4.40, 4.45, 4.59. The Board notes that the Veteran is competent to report symptoms of his back pain and difficulty with movement, and it has considered his lay testimony in reaching this conclusion. Conversely, the Board notes that pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss but does not itself constitute functional loss. Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id.; 38 C.F.R. § 4.40. The Board finds the VA examiners to be competent and there is no evidence to undermine the credibility of the medical opinions rendered. As such, the Board assigns the opinions significant weight for each respective appeal period. See Nieves v. Rodriguez, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Based on the lay and medical evidence of record, the Board finds that the most probative evidence of record does not demonstrate that the Veteran’s lumbar spine disability warrants a disability rating higher than 10 percent, prior to December 6, 2019, nor does it warrant a rating higher than 20 percent thereafter. As such, the Veteran’s claim for increase is denied. Lastly, the Board has considered the Veteran’s neurological manifestations of his lumbar spine disability as consistent with Note 1 under the General Rating Formula for Diseases or Injuries of the Spine. The Veteran is in receipt of awards for radiculopathy affecting the bilateral lower extremities. Evidence of record show no other neurological abnormalities that warrant a separate rating. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.B. Mmeje, 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.