Citation Nr: 21026000 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 15-01 965 DATE: April 29, 2021 ORDER Entitlement to a rating in excess of 40 percent for service-connected intervertebral disc syndrome (IVDS) since June 30, 2014 is denied. FINDING OF FACT Since June 30, 2014, the Veteran’s service-connected intervertebral disc syndrome (IVDS) has been manifested by forward flexion of the thoracolumbar spine 30 degrees or less without ankylosis, incapacitating episodes of at least six weeks during the past 12 months, or disc herniation with compression and/or irritation of the adjacent nerve root. CONCLUSION OF LAW Since June 30, 2014, the criteria for a rating in excess of 40 percent for service-connected intervertebral disc syndrome (IVDS) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 2011 and May 2011, and from October 2011 to November 2012. A November 2018 Board decision remanded the issue on appeal for further development. That development has been accomplished, and the claim has now been returned to the Board for further action. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. 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. 38 C.F.R. § 4.7. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary disorders of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. In evaluating musculoskeletal disabilities, consideration is given to additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination. 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. Johnson v. Brown, 9 Vet. App. 7 (1996). However, in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court clarified that there is a difference between joint motion pain as opposed to pain that places further limitation of the particular range of motion. Disability of the musculoskeletal system is the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The examination upon which ratings are based must adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the 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 must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Id. The provisions 38 C.F.R. §§ 4.40, 4.45, 4.59 should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson, 9 Vet. App. 7. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant on motion. Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance, and that weakness is as important as limitation of motion, and that a part that becomes disabled on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, for example. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. §§ 4.45 and 4.59 also contemplate inquiry into whether there is limitation of motion, weakness, excess fatigability, incoordination, and impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are also related considerations. The Court has held that diagnostic codes predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). In general, when 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). 1. Entitlement to a rating in excess of 40 percent for service-connected intervertebral disc syndrome (IVDS) since June 30, 2014. The Veteran asserts that his service-connected IVDS is more severe than his ratings reflect. Since June 30, 2014, his IVDS has been rated as 40 percent disabling under Diagnostic Code 5243. The Board notes that Diagnostic Code 5242 and 5243, which are used to evaluate degenerative arthritis and intervertebral disc syndrome under The General Rating Formula for Diseases and Injuries of the Spine, was revised effective February 7, 2021. As the current appeal was certified to the Board prior to February 7, 2021, the Board will consider both versions of Diagnostic Codes 5242 and 5243 and apply whichever is more favorable to the Veteran. Prior to February 7, 2021, Diagnostic Code 5242 applied to arthritis of the spine and provides that such is evaluated under the criteria for 38 C.F.R. § 4.71a, Diagnostic Code 5003, which provides that degenerative arthritis is to be rated on the basis of limitation of motion of the affected joint under the appropriate Diagnostic Code for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint group or minor joint group affected by limitation of motion. In the absence of limitation of motion, a 20 percent evaluation is provided where there is X-ray evidence of involvement of two or more major joints, or two of more minor joint groups with occasional incapacitating exacerbations. A 10 percent evaluation is provided where there is X-ray evidence of involvement of two or more major joints, or two of more minor joint groups without exacerbations. Since February 7, 2021, Diagnostic Code 5242 applies to degenerative arthritis and degenerative disc disease other than intervertebral disc syndrome. Diagnostic Code 5242 provides that degenerative arthritis other than prost-traumatic arthritis, is to be rated under Diagnostic Code 5003 on the basis of limitation of motion of the affected joint under the appropriate Diagnostic Code for the specific joint or joints involved, and posttraumatic arthritis is to be rated under Diagnostic Code 5010 as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with §4.25. The General Rating Formula for Diseases and Injuries of the Spine provides the following, in pertinent part: a 20 percent disability 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. Id. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Id. These ratings 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. Id. 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. Id. Under the rating schedule, Intervertebral Disc Syndrome (IVDS) (preoperatively or postoperatively) is to be rated either under the Formula for Rating Intervertebral Disc Syndrome based on “incapacitating episodes” or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in the higher rating when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. With regard to this method of rating (total duration of incapacitating episodes over the past 12 months), the rating criteria provide that a 10 percent rating is warranted if IVDS is manifested by incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. A 20 percent rating is warranted if incapacitating episodes have a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent rating is warranted if the total duration is at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating is warranted if the total duration is at least six weeks during the past 12 months. Id. 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). Additionally, the Board notes that since February 7, 2021, Diagnostic Code 5243 is only to be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root. 38 C.F.R. § 4.71a, Diagnostic Code 5243. There is a large amount of evidence in this case, consisting of mainly medical evidence. The Board notes that it has reviewed the evidence in its entirety but will not be discussing all of it with specificity. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (The Board is presumed to have considered all evidence presented in the record and is therefore not required to specifically discuss every piece of evidence.). The Board will address that evidence which is pertinent to the appeal. A November 2014 VA examination report noted the Veteran’s complaints of worsening lower back pain and the use of steroid injections to manage pain. The Veteran also endorsed inability to stand or walk for a prolonged period, pain upon waking, and use of prescription medication to manage pain. The Veteran also endorsed flare ups described as daily severe pain upon waking and 0 degrees of rage of motion. Forward flexion measured 40 degrees with objective evidence of pain beginning at 10 degrees. Extension measured 10 degrees with objective evidence of pain beginning at 0 degrees. After repetitive testing, the Veteran’s forward flexion measured 20 degrees. The examiner noted additional functional loss as less movement than normal, weakened movement, incoordination, pain on movement, instability, disturbance of locomotion, and interference with standing. The examiner also noted spasms and guarding which did not result in abnormal gait. There was no ankylosis of the spine noted. The examiner did diagnose IVDS, but the examiner found the Veteran had no incapacitating episodes over the past 12 months. A July 2019 VA examination report noted the Veteran’s reports of increasing lower back pain and the inability to find a comfortable position which limits his daily activities. Forward flexion measured 90 degrees without evidence of pain on examination. There was no localized tenderness, pain on palpation spasm, guarding, muscle atrophy, or ankylosis, and the Veteran had no further loss of function or range of motion after repetitive testing. The examiner did not diagnosis IVDS. Medical treatment records throughout the appeal period reflect similar symptoms as noted by the VA examination reports of record. Specifically, the Veteran’s lumbar spine disability consistently caused functional loss such as pain, fatigue, and weakness throughout the appeal period. No medical treatment records reflect ankylosis of the spine, incapacitating episodes, or disc herniation with compression and/or irritation of the adjacent nerve root at any time. After review of the evidence of record for the applicable appeal period, the Board finds that a rating in excess of 40 percent is not warranted at any time during the appeal as the Veteran does not have or has ever been noted to have spinal ankylosis, which is necessary for a rating in excess of 40 percent under Diagnostic 5242. Further, the Veteran’s lumbar spine disability does not warrant a rating in excess of 40 percent under Diagnostic Code 5243 for any period as the VA examination reports and medical treatment records for the appeal period do not show, and the Veteran does not allege, any incapacitating episodes due to IVDS as defined in the criteria described with a total duration of at least six weeks during the past 12 months or disc herniation with compression and/or irritation of the adjacent nerve root at any time. The Veteran is competent to report certain obvious symptoms of his lumbar spine disability but not to identify a specific level of disability. Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Competent evidence concerning the nature and extent of the Veteran’s service-connected disability has been provided by the VA medical professional who examined him. The medical findings adequately address the criteria under which this disability is evaluated. The Board accords the objective medical findings greater weight than subjective complaints of increased symptomatology. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board additionally considered whether there are any other Diagnostic Codes which could apply to the Veteran’s current thoracolumbar spine disability. Diagnostic Code 5242 allows for a rating under Diagnostic Code 5003 for arthritis. Diagnostic Code 5003 provides for a compensable rating only if one is not available under the general formula. As the Veteran is currently rated as compensable under Diagnostic Code 5243, it is not applicable to this case. The Board therefore finds that there are no other potentially applicable Diagnostic Codes by which a higher rating can be assigned. The Board further finds that a separate disability rating is not warranted because the evidence does not demonstrate that the Veteran suffers from a separate neurological disability distinct from his already service-connected lumbar spine disability for which he has not already been granted service connection. See Bierman v. Brown, 6 Vet. App. 125, at 129-32 (1994). Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not “duplicative of or overlapping with the symptomatology” of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board notes that the Veteran has previously been granted service connection for right lower extremity radiculopathy associated with his lumbar spine disability. (Continued on the next page)   Thus, the Board finds that since June 30, 2014 the Veteran’s service-connected intervertebral disc syndrome (IVDS) has not more closely approximated the criteria for a rating in excess of 40 percent, and a higher rating for the Veteran’s service-connected IVDS is therefore not warranted. Therefore, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Peden 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.