Citation Nr: 21027192 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-28 590 DATE: May 4, 2021 ORDER Entitlement to a rating in excess of 40 percent for status post L4-5 microdiskectomy and anterior lumbar fusion, L3-L4, L4-L5, (low back disability), is denied. FINDING OF FACT The Veteran's low back disability has not manifested in unfavorable ankylosis of the thoracolumbar spine or its functional equivalent. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for a low back disability are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5243 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active air service from November 1989 to February 2008. This case initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2018, the Board remanded the claim for additional development. The case has since been returned to the Board for further appellate review. Increased Rating Low Back Disability In January 2014, the RO scheduled the Veteran for a VA examination to assess the severity of his service-connected low back disability. In a February 2014 rating decision, the RO continued a 40 percent rating for the disability. The Veteran appealed, seeking a rating in excess of 40 percent. During a January 2014 VA examination, the Veteran complained of left-sided sciatica. It was noted that a magnetic resonance imaging (MRI) of the lumbar spine did not show any nerve root involvement or significant neuroforaminal encroachment. He reported that he did not have any flare-ups that impacted the function of the thoracolumbar spine. On examination, forward flexion of the thoracolumbar spine was limited to 85 degrees with no objective evidence of painful motion. Extension was limited to 10 degrees with pain noted at 10 degrees. Right and left lateral flexion was limited to10 degrees with no objective evidence of painful motion. Right and left lateral rotation was limited to 20 degrees with no objective evidence of painful motion. On repetitive-use testing, there was no additional limitation in range of motion. The examiner indicated that functional impairment after repetitive use included less movement than normal and pain on movement. There was tenderness to palpation of the paravertebral area of the lower back. There were no muscle spasms or guarding resulting in abnormal gait or abnormal spinal contour. The examiner indicated that the Veteran had mild radiculopathy on the left side. There was no ankylosis of the spine and no other neurologic abnormalities. The examiner indicated that the Veteran did not have intervertebral disc syndrome (IVDS). It was noted that he regularly used a soft brace that was a S1-belt. In terms of functional impact on his ability to work, he stated that his travel had to be adjusted at times. He also stated that he might stand at some meetings because it was difficult for him to sit for prolonged periods of time. Private treatment records dated from January 2014 to October 2016 indicated that the Veteran received multiple therapeutic facet joint injections. In January 2015, he reported that his back pain had increased due to long driving trips. In May 2015, he reported that he was having flare-ups every ten to fifteen days where his low back locked up as well as the upper back on the left side. It was noted that range of motion was limited with pain in flexion and extension with marked spasms and tenderness. In January 2016, he reported having more low back pain and tingling into the left leg and foot. On examination, he had marked spasms and tenderness over the lumbar paravertebral musculature. Range of motion in flexion, extension, and lateral bending was decreased and painful. Straight leg raises were positive. Gait was stiff, slow, and antalgic. Later that month, he received a lumbar facet injection. In March 2016, he received a lumbar medial branch block. It was noted that he had decreased range of motion in all planes. In April 2016, he reported 50 percent improvement. During an October 2016 VA examination, the Veteran reported that his back condition had gotten worse over the years with bilateral sciatica symptoms, left worse than right. He stated that he saw a pain management specialist regularly and had radiofrequency ablation in the past year or two and multiple lumbar facet injections. He reported having flare-ups with sharp and dull pain across the low back. He stated that pain with sitting limited his car and air travel and limited prolonged walking or sitting. He stated that he had to change position frequently. On examination of the Veteran's thoracolumbar spine, there was no localized tenderness, guarding, or muscle spasm. There was no ankylosis. Forward flexion was limited to 50 degrees; extension to 15 degrees; right lateral flexion to 15 degrees; left lateral flexion to 10 degrees; and right and left lateral rotation to 20 degrees. Range of motion limited his ability to pick up low-level objects. Pain was noted on examination, but did not result in functional loss. There was no evidence of pain with weight bearing. On repetitive use testing, there was no additional loss of function or range of motion. The examiner indicated that the Veteran was not being observed immediately after repetitive use over time or during a flare-up but indicated that pain would significantly limit functional ability with repetitive use over time and during flare-ups. The examiner indicated that he was unable to reliably describe the functional loss in terms of range of motion in absence of an examination immediately after repetitive use over time or during a flare-up. The examiner indicated that the Veteran's radiculopathy involved the sciatic nerve and was mild on the right side and moderate on the left side. There were no other neurologic abnormalities. The examiner indicated that the Veteran did not have IVDS and did not report whether he had had any incapacitating episodes over a 12-month period. It was noted that he occasionally used a cane for assistance in locomotion. Private treatment records dated from October 2016 to October 2019 indicated that the Veteran received ongoing treatment for cervical and lumbar spine conditions. In October 2017, he complained of low back pain and sciatica into the left leg exacerbated with sudden movements. He stated that the pain radiated into the foot and was 6/10 in severity. Straight leg raise testing was positive on the left at 60 degrees. In February 2018, he reported experiencing low back pain with some referred pain into the left buttock and anterior thigh area as well as to the right. Range of motion was limited in all planes due to pain. Straight leg raise testing was negative. Motor, sensory, and reflex examinations were normal. His gait was non-antalgic. In March 2018, he underwent a bilateral lumbar dorsal medial branch block. Later that month, he underwent lumbar radiofrequency ablation. In April 2018, he reported low back pain with no referred pain into the lower extremities. He reported a 60 percent decrease in his overall pain. He reported that he was unwell following the radiofrequency ablations, but it was noted he was able to work full time and also engage in exercise activities. He indicated that he took medication for breakthrough pain. In May 2018, he reported minimal back pain following his lumbar radiofrequency ablations, 3/10 in severity. There was no radiation of pain and the quality of the pain was described as aching. In July 2018, he reported back pain on the right low back, which was well-controlled with medications, and 6/10 in severity with no radiation of pain. Range of motion was full with mild pain at the endpoints. In September 2018, he reported having occasional flare-ups, which were well-controlled in terms of intensity, frequency, and duration. The pain was exacerbated from sitting too long or driving, and relieved by medications and application of alternating heat and ice. Range of motion was limited in all planes due to pain. In May 2019, he rated his pain as 6/10, and was given facet joint injections. In June 2019, he reported a 75 percent reduction in his pain. He was given bilateral lumbar dorsal medial branch blocks. During an October 2019 VA examination, the Veteran reported having chronic back pain, tingling in both legs, and numbness and burning in his feet. He stated that standing and walking were limited to 10 to 15 minutes, and that he could not sit over 30 minutes. He also stated that he avoided stairs. He reported experiencing flare-ups monthly, which were severe and lasted one week. He stated that flare-ups were precipitated by random occurrences and alleviated by rest and pain medication. On examination of the Veteran's thoracolumbar spine, there was no guarding or muscle spasm, and no ankylosis. Forward flexion was limited to 30 degrees with pain noted at 5 degrees. Extension was limited to 10 degrees; right lateral flexion to 15 degrees; left lateral flexion to 10 degrees; and right and left lateral rotation to 5 degrees. Pain was noted on examination and caused functional loss. There was evidence of pain with weight bearing and on passive range of motion testing. There was no evidence of localized tenderness or pain on palpation. On repetitive use testing, there was no additional loss of function or range of motion. The examiner indicated that the Veteran was not being examined after repeated use over time or during a flare-up. The examiner indicated that pain would significantly functional ability with repeated use over time and during flare-ups. The examiner estimated that after repeated use over time and during flare-ups, forward flexion would be limited to 25 degrees, extension to 5 degrees, right lateral flexion to 10 degrees, left lateral flexion to 5 degrees, and right and left lateral flexion to 5 degrees. The examiner indicated that the Veteran had mild radiculopathy involving the femoral and sciatic nerve on both sides. There were no other neurologic abnormalities. It was also noted he had IVDS but did not have any incapacitating episodes over the past 12-month period. The examiner indicated that he did not use any assistance devices for locomotion. The examiner opined that the Veteran would not be able to work in a non-sedentary work environment due to his chronic back disability due to restrictions on prolonged standing, sitting, and walking and restriction on heavy lifting. The examiner indicated that he could work in a sedentary environment with the freedom to change positions after prolonged sitting. In this case, the evidence does not indicate that a rating in excess of 40 percent is warranted for the Veteran's back disability at any time during the appeal period. To warrant a higher, 50 percent rating under the General Rating Formula for Disease and Injuries of the Spine, the evidence must show unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. Ankylosis is generally defined as the complete immobility of a joint in a fixed position. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Note (5) under the General Rating Formula specifies that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, thoracolumbar spine, or the entire spine is fixed in flexion or extension and 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. For the thoracolumbar spine, favorable ankylosis warrants a 40 percent rating. Here, the evidence does not indicate that the Veteran has ankylosis of the thoracolumbar spine or that his overall symptomatology more closely approximates unfavorable ankylosis. At worst, forward flexion of the spine was limited to 30 degrees with pain beginning at 5 degrees. The VA examiner further indicated that with repeated use over time and during flare-ups, forward flexion would be limited to 25 degrees. Although the Veteran reported, in May 2015, that he was having flare-ups every ten to fifteen days where his low back locked up, he did not indicate that his low back was completely immobile in flexion or extension and the evidence does not indicate that reported locking was associated with any symptoms of unfavorable ankylosis as described above. The private treatment records indicate that the Veteran's flare-ups primarily result from prolonged sitting or driving, and that his symptoms are relieved by changing position, rest, and pain medication. The Board does not find that the symptoms described by him, his treating physicians, and VA examiners are functionally equivalent to unfavorable ankylosis even when considering repeated use over time and flare-ups. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Therefore, a rating in excess of 40 percent is not warranted under the General Rating Formula for Diseases or Injuries of the Spine. 38 C.F.R. § 4.71a. The Board notes that there is some discrepancy as to whether the Veteran has IVDS. The January 2014 and October 2016 VA examiners indicated that he did not IVDS while the October 2019 VA examiner indicated that he did have IVDS. The Board observes, however, that the Veteran has been rated using the diagnostic code for IVDS, i.e., Diagnostic Code 5243. Those criteria allow for consideration of Formula for Rating IVDS Based on Incapacitating Episodes. Incapacitating episodes are 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. See Note (1). In this case, the evidence does not indicate that the Veteran has had any incapacitating episodes of IVDS, much less than the required 6 weeks of incapacitating episodes during a 12-month period required for a higher, 60 percent rating. Regarding neurologic abnormalities, the Veteran receives separate compensable ratings for radiculopathy of the right and left lower extremities. He has not requested higher ratings for those disabilities or appealed the rating decisions that granted service connection for those disabilities. Therefore, those issues are not before the Board. The evidence does not indicate that he has any other neurologic abnormalities associated with his low back disability. The Board notes that effective February 7, 2021, the rating criteria pertaining to musculoskeletal disabilities were revised. See 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). However, the rating criteria pertaining to the Veteran's service-connected low back disability were not substantively changed. In sum, the Board finds that the Veteran's symptomatology is consistent with a 40 percent rating throughout the appeal period. A higher rating is not warranted for the low back disability. 38 C.F.R. § 4.71, Diagnostic Code 5243. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Mishalanie, 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.