Citation Nr: 21029166 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 13-07 399 DATE: May 12, 2021 ORDER A rating higher than 20 percent for L5-S1 spondylolisthesis, anterolisthesis, L4-L5 retrolisthesis, spondylolysis and degenerative disc disease (lumbar spine disability), is denied. FINDING OF FACT The Veteran's lumbar spine disability has not been manifested by forward flexion of the thoracolumbar spine of 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes of intervertebral disc syndrome (IVDS) having a total duration of at least 4 weeks, at any time during the appeal. CONCLUSION OF LAW The criteria for a rating higher than 20 percent for L5-S1 spondylolisthesis, anterolisthesis, L4-L5 retrolisthesis, spondylolysis and degenerative disc disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1973 to March 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which continued the 10 percent rating assigned for L5-S1 spondylolisthesis. The disability was subsequently recharacterized as L5-S1 spondylolisthesis, anterolisthesis, L4-L5 retrolisthesis, spondylolysis and degenerative disc disease. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in January 2014. A transcript is of record. The claim was remanded by the Board in February 2015 and June 2017 for additional development. In a December 2017 rating decision, the evaluation assigned for the lumbar spine disability was increased to 20 percent effective July 10, 2017. The Board issued a decision in January 2019 that granted a 20 percent rating for the lumbar spine disability prior to July 10, 2017, denied a rating higher than 20 percent, and denied entitlement to a TDIU due to the service-connected lumbar spine disability. The Board explained that it was taking jurisdiction of the TDIU issue pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran appealed the Board's January 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2019 Joint Motion for Partial Remand, the parties requested that the Court vacate the January 2019 Board decision that denied a rating higher than 20 percent for the lumbar spine disability and entitlement to a TDIU. The Court granted the Joint Motion in a December 2019 Order. The claims were remanded by the Board in July 2020. Since entitlement to a TDIU was granted in a January 2021 rating decision effective March 26, 2011, the day following his last date of work, that issue is no longer before the Board on appeal. 1. A rating higher than 20 percent for L5-S1 spondylolisthesis, anterolisthesis, L4-L5 retrolisthesis, spondylolysis and degenerative disc disease Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 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 may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran filed a claim for entitlement to a TDIU that was received on April 27, 2011, and that the RO considered as a claim for ratings higher than those assigned for his service-connected disabilities. The January 2012 rating decision that is the subject of this appeal continued the 10 percent rating assigned for the lumbar spine disability pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5243. As noted above, a December 2017 rating decision increased the rating to 20 percent, effective July 10, 2017, also pursuant to Diagnostic Code 5243, and the Board granted a 20 percent rating for the lumbar spine disability prior to July 10, 2017, in January 2019. The Board's grant was effectuated in an August 2019 rating decision pursuant to Diagnostic Code 5239 effective May 9, 2011. The focus of this decision is whether the Veteran is entitled to a rating higher than 20 percent for his lumbar spine disability at any point during the appeal period. Disabilities of the spine are to be rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, and they "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." 68 Fed. Reg. 51,454 (Aug. 27, 2003). Any associated objective neurologic abnormalities including, but not limited to, bowel or bladder impairment, are to be rated separately from orthopedic manifestations under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1). Ratings higher than 20 percent pertinent to the lumbar spine are provided for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine (40 percent); for unfavorable ankylosis of the entire thoracolumbar spine (50 percent); and for unfavorable ankylosis of the entire spine (100 percent). Id. For VA compensation purposes, unfavorable ankylosis is a condition in which 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. Id. at Note (5). Alternatively, IVDS can be rated under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). This formula provides a 40 percent rating for IVDS with 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 rating for IVDS with incapacitating episodes having a total duration of at least 6 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. See 38 C.F.R. § 4.71a, Note (1). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. However, the Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. The rating criteria for the spine were amended on February 7, 2021. Diagnostic Code 5242 was amended to make clear that its application was for degenerative arthritis/disc disease of the spine other than IVDS. Diagnostic Code 5243 was amended to make clear that it should only be applied for disc herniation with compression and/or irritation of the adjacent nerve root, and that all other disc diagnoses should be rated under Diagnostic Code 5242. The Veteran seeks a rating higher than 20 percent for his lumbar spine disability. In a May 2012 statement, he reported multiple episodes of chronic and acute pain between levels three and five every day and that pain medications worked, but the acute pain between levels six and eight required him to get off his feet several times a month. The Veteran asserted that this had been going on for several years; that he was able to take days off when he wanted instead of working a set schedule; and that pain medications made it hard to work nights. In a November 2012 statement, the Veteran reported constant pain; that his medications were not as effective; and that pain episodes had left him bedridden up to a week. In a statement received December 2012, the Veteran's wife reported that there were several times the Veteran would come home from work and lay down on the bed to sleep and stretch out his back because of the pain and he would stay in bed until he had to go back to work. She also reported several occasions of back pain at level six to eight that would last up to 24 hours before being tolerable again. In his February 2013 VA Form 9, the Veteran indicated he disagreed with the determination about incapacitating episodes, reported he had episodes lasting a total of at least six weeks or more, and that a December 2012 episode lasted eight days. He testified in January 2014 that he had spasms a couple times a month, that his motion was limited all the time, and that it was hard for him to turn left and bend over to pick things up. The Veteran has also submitted handwritten charts of days he had been bedridden between May 2015 and November 2015, which by his calculations equated to a total of over two months a year. The only additional argument submitted in this case is that found in an April 2021 brief from the Veteran's representative, which does not provide any assertions specific to why a rating higher than 20 percent is warranted for the lumbar spine disability and instead focuses on why service connection for lower extremity radiculopathy and entitlement to a TDIU should be granted, despite the fact that the Veteran is already service-connected for bilateral lower extremity radiculopathy and a TDIU was established effective March 26, 2011. The preponderance of the evidence is against the assignment of a rating higher than 20 percent for the lumbar spine disability at any time during the appeal. The Board acknowledges the Veteran's assertions concerning the symptoms he experienced and finds him to be both competent and credible. To merit the assignment of the next highest (40 percent) rating provided under the General Rating Formula, however, the evidence must show that the Veteran had forward flexion of the thoracolumbar spine of 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. The evidence in this case does not show either. Rather, the Veteran's thoracolumbar spine exhibited forward flexion limited, at worst, to 45 degrees; and there is no evidence of ankylosis or evidence of the functional equivalent of ankylosis during flare-ups. See Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660, at *4) (Apr. 16, 2021); see also VA examination reports; VA and private treatment records. Nor is the assignment of a rating higher than 20 percent for the Veteran's lumbar spine disability warranted under the IVDS Formula at any time during the appeal. This is so because there is no evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. While the Board acknowledges that the Veteran has reported being on bed rest at times throughout the appeal period, there is no indication, and the Veteran has not reported, that the bed rest was prescribed by a physician. In addition, the examiners who conducted the May 2015, July 2017, and January 2021 VA examinations also noted there had been no incapacitating episodes as defined by VA regulation. Consideration has been given to any functional impairment and any effects of pain on functional abilities due to the Veteran's service-connected lumbar spine disability. The Board acknowledges the Veteran's subjective complaints made in written statements, during testimony, and during VA examination. The Board also acknowledges the objective evidence of pain following repetitive motion during the June 2011 VA examination; functional loss and/or impairment due to pain on movement during the November 2012 VA examination, during which the examiner also noted the Veteran's complaint of an acute "pinch" in his left hip affecting lateral motion; pain with lumbar extension during a September 2012 VA examination; pain noted with forward and left lateral flexion during the July 2017 VA examination that did not result in or cause functional loss and tenderness to palpation over the midline lumbar spine at the L2-L5 levels; and pain on exam on rest/non-movement with all motions and pain with weight and non-weight bearing during the January 2021 VA examination, during which the examiner determined that the Veteran's abnormal range of motion contributes to a functional loss because the Veteran has difficulty bending, stooping, or squatting, and that pain and fatigue significantly limit functional ability with repeated use over a period of time and with flareup. In this case, the Board does not find any additional functional loss that is not contemplated by the currently assigned 20 percent rating. The Veteran has described functional limitations which are contemplated in the rating criteria, and the Veteran himself has not described additional motion loss or functional impairments during flare-ups that meets or more nearly approximates the criteria for the next higher (40 percent) rating. Indeed, the only reduction during repetitive use was a loss of 10 degrees on left lateral rotation due to pain during repetitive use testing at the time of the June 2011 VA examination. The Veteran did not exhibit additional loss of motion during repetitive use testing during the November 2012, May 2015, July 2017, and January 2021 VA examinations and forward flexion was, at worst, limited to 45 degrees, which is 15 degrees more than the amount needed to support the assignment of a 40 percent rating. The May 2015 and July 2017 VA examiners also indicated that pain, weakness, fatigability, and incoordination did not significantly limit the Veteran's functional ability with repeated use over time. Although the May 2015 VA examiner noted that pain and lack of endurance significantly limit functional ability with flare-ups and the January 2021 VA examiner did find decreased range of motion with pain and pain upon standing and walking as additional factors contributing to disability, as well as that pain and fatigue significantly limit functional ability with repeated use over a period of time and with flareup, the January 2021 VA examiner indicated that the impaired function would not result in a change in the Veteran's range of motion. Considering the foregoing, the Board finds that a rating higher than the 20 percent rating assigned for the Veteran's lumbar spine disability is not warranted based on functional impairment at any time during the appeal period. 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-06. The Board has also considered whether the Veteran's service-connected lumbar spine disability manifests any associated objective neurologic abnormalities at any time during the appeal period. However, the Veteran is already separately service connected for radiculopathy of the lower extremities, and the record does not reflect other neurological disabilities associated with his lumbar spine disability. In sum, the preponderance of the evidence supports the currently assigned 20 percent rating for the lumbar spine disability throughout the appeal period. The evidence in this case is not so evenly balanced to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Van Wambeke, 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.