Citation Nr: 21026198 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 16-32 997 DATE: April 30, 2021 ORDER Entitlement to a rating in excess of 40 percent for a low back disability (facet sclerosis of L5-S1) is denied. FINDING OF FACT Throughout the period on appeal, the Veteran’s low back disability has been productive of forward flexion at 30 degrees or less when considering both pain on motion and resultant, additional functional loss in all planes of motion; IVDS with incapacitating episodes and/or unfavorable ankylosis of the entire thoracolumbar spine have not been demonstrated. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 40 percent for a low back disability (facet sclerosis of L5-S1) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5299-5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from August 1996 to January 2005. In April 2019, the Veteran’s claim was remanded by the Board. At that time, the Board determined that the Veteran’s low back condition had worsened and required an updated VA examination. That development having been completed, his claim is once again before the Board and will be adjudicated below. 1. Entitlement to a rating in excess of 40 percent for a low back disability (facet sclerosis of L5-S1) The Veteran’s claim for a low back disability was originally granted in a March 2005 rating decision. The Veteran’s rating was increased in a September 2007 rating decision. In an October 2008 statement in support of claim, the Veteran requested an increased rating. His disability rating was increased to 40 percent in an October 2009 rating decision. In October 2010, the Veteran requested an increased rating for his low back disability. In May 2012, the Veteran’s 40 percent rating for his low back disability was continued. In January 2014, the Veteran submitted a notice of disagreement with the decision for his low back disability. In May 2016, the RO continued the Veteran’s 40 percent rating in a statement of the case. The Veteran appealed his claim to the Board in a July 2016 Form 9. In a December 2018 supplemental statement of the case, the RO once again continued the Veteran’s 40 percent rating. The Veteran’s service-connected low back disability is evaluated under Diagnostic Codes 5299-5237 and is currently rated as 40 percent disabling, pursuant to the General Rating Formula for Diseases and Injuries of the Spine, 38 C.F.R. § 4.71a, DCs 5299-5237. The hyphenated DC in this case indicates that the symptoms of the herniated L5-S1 disc are most clearly manifested by lumbosacral strain under DC 5237. 38 C.F.R. § 4.27. The General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) encompasses such disabling symptoms as pain, ankylosis, limitation of motion, muscle spasm, and tenderness. Diagnostic Codes 5235-5243 are included under the General Rating Formula. The General Rating Formula provides for a 10 percent rating where there is forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; combined range of motion (ROM) of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; 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. A 20 percent rating is warranted where there is forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; a combined ROM 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 warranted where there is forward flexion of the thoracolumbar spine at 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is available for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is available for unfavorable ankylosis of the entire spine. 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 ROM refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined ROM of the thoracolumbar spine is 240 degrees. The normal ROMs for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined ROM. 38 C.F.R. § 4.71a, DCs 5235-5243, Note (2); see also Plate V. Unfavorable ankylosis is 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, DCs 5235-5243, Note (5). Intervertebral disc syndrome (IVDS) (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, DC 5243. Under the IVDS Formula, a 10 percent rating requires incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating requires incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating requires incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, and a 60 percent rating requires incapacitating episodes having a total duration of at least six weeks during the past 12 months. An “incapacitating episode” is defined as 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, DC 5243, Note (1). Effective February 7, 2021, degenerative arthritis and degenerative disc disease other than intervertebral disc syndrome are to be rated under Diagnostic Code 5242. A rating under Diagnostic Code 5243 for intervertebral disc syndrome is only to be assigned when there is disc herniation with compression of the adjacent nerve root. See 85 Fed. Reg. 76464 (Nov. 30, 2020). However, there were no substantive changes to the rating criteria under these diagnostic codes. In March 2009, a VA examiner noted that the Veteran reported constant low back pain with diffuse radiation down the left lower extremity, associated with numbness, tingling, and weakness. The Veteran also reported that pain occurred especially on prolonged sitting, standing, and walking, and was eased by rest. The examiner commented that the Veteran’s lumbosacral spine was mildly diffuse, with tenderness but no paraspinal spasm. His straight leg raising test was negative on the right, and positive on the left at 25 degrees. Range of motion showed forward flexion 10 degrees, backward extension 10 degrees, and right and left lateral flexion 15 degrees. The Veteran claimed pain on all movement, and inability to move beyond the aforementioned limits, but there was no objective evidence of either. The Veteran rose and stood normally. He used a cane to ambulate and appeared to require it for assistance. His gait showed mild to moderate limp to the left. The Veteran refused to walk on his heels or toes, and refused to hop or squat. The examiner noted that there was no evidence of weakened movement, excessive fatigability, or incoordination. There was no evidence that these factors or pain decreased motion during exacerbation or repetitive activity. There was no evidence of weight loss, fever, malaise, or dizziness. Pain was constant, so there were no specific flare-ups. Precipitating and alleviating factors were discussed. There was no additional limitation of motion or functional impairment during flare-ups. The Veteran used a cane to ambulate, and appeared to require it for distance. He also wore a back brace, which he removed for the examination. The Veteran was able to perform his activities of daily living. There was no prosthesis. There was no ankylosis. There was considerable disproportion between subjective range of motion and objective findings. There was no history of doctor-prescribed bedrest within the last twelve months. There had been no prostrating episodes during that time period. The Board has previously noted that the Veteran’s above VA lumbosacral spine examination of his low back disability was not performed under the requirements that have been amended since the May 2012 rating decision that continued the Veteran’s 40 percent rating. See Correia v. McDonald, 28 Vet. App. 158 (2016); Southall-Norman v McDonald, 28 Vet. App. 346 (2016); 38 C.F.R. § 4.59. As such, the Veteran’s claim was remanded for additional development including a new VA examination. In July 2019, the Veteran underwent a new VA examination. At that examination, the examiner confirmed that the Veteran had a diagnosis of intervertebral disc syndrome. The Veteran reported flare-ups, described as severe and unbearable, occurring daily, and triggering fecal urgency. He described that they lasted up to a day, and were precipitated by sitting more than five minutes or standing longer than five minutes. He reported that the flare-ups were alleviated by slouch with back support, heating pad, and medications. The Veteran also reported having functional loss, described as being unable to sit for more than five minutes without experiencing coccyx pain, and the urge to urinate or defecate. He further reported that his disability interfered with his work, which required sitting at a computer, as well as with his daily activities such as cooking, and doing laundry. Initial range of motion was recorded as forward flexion at 0 to 30 degrees, extension at 0 to 10 degrees, right lateral flexion at 0 to 15 degrees, left lateral flexion at 0 to 15 degrees, right lateral rotation at 0 to 20 degrees, and left lateral rotation at 0 to 20 degrees. There was pain noted on the examination that caused functional loss. There was pain exhibited with all range of motion testing. There was no evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joint, located at the lumbar musculature and coccyx, with moderate severity. The Veteran was not able to perform repetitive use testing. The examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. Pain, weakness, and lack of endurance significantly limited functional ability with repeated use over a period of time. In terms of range of motion with repeated use over time, the examiner noted that forward flexion was 0 to 30 degrees, extension 0 to 10 degrees, right lateral flexion 0 to 15 degrees, left lateral flexion 0 to 15 degrees, right lateral rotation 0 to 20 degrees, and left lateral rotation 0 to 20 degrees. While the examination was not being conducted during a flare-up, the examination was medically consistent with the Veteran’s statements describing functional loss during a flare-up. Pain, fatigue, weakness, and lack of endurance caused functional loss. In terms of range of motion during a flare-up, the examiner noted that forward flexion was 0 to 30 degrees, extension 0 to 10 degrees, right lateral flexion 0 to 15 degrees, left lateral flexion 0 to 15 degrees, right lateral rotation 0 to 20 degrees, and left lateral rotation 0 to 20 degrees. The Veteran exhibited guarding or muscle spasm of his spine, which resulted in abnormal gait or abnormal spinal contour. Additional factors contributing to his disability included disturbance of locomotion and interference with sitting. Muscle testing was all normal, with strength at normal limits. The Veteran did not exhibit muscle atrophy. There were no issues were deep tendon reflexes, and the Veteran’s sensory examination produced all normal results. The Veteran had positive results on his straight leg raising test. The Veteran had radicular pain; namely, the Veteran had mild constant pain in the right and left lower extremities, moderate intermittent pain in the right lower extremity, and mild intermittent pain in the left lower extremity. The Veteran did not exhibit paresthesias, dysesthesias, or numbness. In addition to the symptoms noted on the examination, the examiner noted that the Veteran also suffered from urinary and fecal urgency suspicious for nerve root involvement. The examiner noted that the Veteran’s left and right side radiculopathy was of mild severity. There was no ankylosis of the spine. While the Veteran suffered from IVDS, he did not have any episodes that required bedrest prescribed by a physician in the past twelve months. The Veteran notably walked with a cane for support. Overall, the examiner determined that the Veteran’s spinal disability impacted his ability to work due to constant pain, spasms, and urinary urgency which impacted his performance. The examiner noted that there was objective evidence of pain on passive range of motion testing of the back, and that there was objective evidence of pain on non-weightbearing testing of the back. The examiner also noted that the Veteran had subjective increases in pain with sitting during his interview, uncomfortable transfers, and he was witnessed to have significant trouble getting into a sitting position in his car as he left. In an addendum opinion, the examiner clarified that the Veteran’s original diagnosis of facet sclerosis plus IVDS and coccyalgia remained, with the latter representing progression. The examiner also clarified that symptoms noted in the examination were directly related to the Veteran’s original injury. The Board acknowledges that the Veteran’s service-connected low back disability causes pain. The presence of pain, as described by the Veteran, is certainly a component of his disability and is contemplated in the rating criteria. The Board finds that the rating assigned adequately portrays any functional impairment, pain, fatigue, weakness, and any flare-ups that the Veteran experienced as a consequence of his low back disability. Accordingly, a 40 percent rating is appropriate as it already encompasses the provisions of 38 C.F.R. §§ 4.40, 4.45, and the DeLuca considerations. A higher 50 percent rating is not warranted, as there is no evidence of unfavorable ankylosis of the entire thoracolumbar spine, or the functional equivalent of ankylosis when considering functional impairment, flare-ups, and repetitive use over time. Although the Veteran has been found to have IVDS, he has not been shown to have periods of incapacitating episodes having a total duration of at least six weeks during the last twelve months. In fact, in the Veteran’s most recent examination, the VA examiner found that the Veteran had IVDS with no incapacitating episodes. Therefore, a rating higher than 40 percent is not warranted under the IVDS Formula. In addition to consideration of the orthopedic manifestations of the low back disability, VA regulations require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). In this regard, the Board notes that the Veteran is already service-connected for neurogenic bladder associated with facet sclerosis, neurogenic bowel dysfunction associated with facet sclerosis, and lower extremity radiculopathy associated with facet sclerosis bilaterally. There is no additional neurological dysfunction of the lumbar spine that has not already been compensated. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7; Gilbert, supra. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Vosburgh, 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.