Citation Nr: 21029570 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 17-14 708 DATE: May 13, 2021 ORDER Initial evaluation of 20 percent for lumbar arthritis with intervertebral disc syndrome (IVDS) and spondylolisthesis is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his service-connected lumbar arthritis with IVDS and spondylolisthesis results in functional impairment comparable to forward flexion of the thoracolumbar spine to no greater than 60 degrees; it does not result in forward flexion of the thoracolumbar spine to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or episodes of acute signs and symptoms due to IVDS that require bed rest prescribed by a physician and treatment by a physician. CONCLUSION OF LAW The criteria for an initial evaluation of 20 percent, but no higher, for lumbar arthritis with IVDS and spondylolisthesis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1969 to June 1971, including in the Republic of Vietnam. He was awarded the Vietnam Service Medal and the Republic of Vietnam Campaign Medal. The Board thanks him for his honorable service to the United States. The Veteran testified before the undersigned Veterans Law Judge during a January 2020 hearing. A transcript of the hearing is in the record before the Board. The Board remanded the claim on appeal for additional development in January 2020. There has been substantial compliance with the remand and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Initial evaluation in excess of 10 percent for lumbar arthritis with IVDS and spondylolisthesis. The Veteran contends that his lumbar arthritis with IVDS and spondylolisthesis warrants a higher initial evaluation. During the hearing, he stated that he sought a 20 percent evaluation. In general, ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. An exception to this rule applies when the rating criteria are successive. In such a case, all the requirements of the lower levels must be met before a higher level is awarded, and 38 C.F.R. §§ 4.7 and 4.21 do not apply. Johnson v. Wilkie, 30 Vet. App. 245 (2018). With a claim for an increased initial rating, separate "staged" ratings may be assigned based on facts found. Fenderson v. West, 12 Vet. App. 119 (1999). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to factors such as disability causing less movement than normal, more movement than normal, weakened movement, excess fatigability, and incoordination. The United States Court of Appeals for Veterans Claims (Court) has held that 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. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca, supra, at 206. The Court clarified that 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); cf. Powell v. West,13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pain, in and of itself, that does not result in additional functional loss does not warrant a higher rating; the Court held that pain alone does not constitute functional loss but is just one fact to be considered when evaluating functional impairment. Id. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (citing 38 C.F.R. § 4.40). 38 C.F.R. § 4.40 (functional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded); see Schafrath, supra. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Veteran's disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242-5243. During the pendency of this appeal, VA promulgated new regulations governing ratings for the musculoskeletal system and muscle disabilities, effective February 7, 2021. See 85 Fed. Reg. 76,453 (Nov. 30, 2020). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change. In pertinent part, 38 C.F.R. § 4.71a, Diagnostic Code 5242 for degenerative arthritis of the spine was revised to apply to degenerative arthritis, degenerative disc disease other than IVDS. In addition, 38 C.F.R. § 4.71a, Diagnostic Code 5243 for IVDS was revised to include an instruction to assign this Diagnostic Code only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Diagnostic Code 5242 should be assigned for all other disc diagnoses. Significantly, the actual rating criteria (the General Rating Formula for Diseases and Injuries of the Spine and the Formula for Rating IVDS Based on Incapacitating Episodes) were not changed. In this case, Diagnostic Code 5242, not Diagnostic Code 5243, would apply to the Veteran's disability under the revisions effective February 7, 2021, as the evidence shows that his disability does not include herniated disc. See the October 2020 VA Back (Thoracolumbar Spine) examination report. However, as the actual applicable rating criteria (the General Rating Formula for Diseases and Injuries of the Spine) were not changed, a higher evaluation would not be warranted under the revisions effective February 7, 2021. Under the criteria effective prior to February 7, 2021, Diagnostic Code 5242 evaluates degenerative arthritis and Diagnostic Code 5243 evaluates IVDS. Diagnostic Code 5242 provides that degenerative arthritis is to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine. A 20 percent rating is warranted 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula at Note 5. Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. In the absence of limitation of motion, a 20 percent evaluation is warranted for x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Both sacroiliac joints, along with the lumbosacral articulation, are considered to be a single group of minor joints. 38 C.F.R. § 4.45 (f). Multiple involvement of the lumbar vertebrae is also considered to be a group of minor joints. Id. Diagnostic Code 5243 provides that IVDS is to be rated 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 rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. The Board observes that the rating period on appeal begins April 8, 2016, the date the Veteran submitted his claim for service connection for low back disability. Turning to the evidence of record, in a March 2017 statement the Veteran's wife related that because of his low back disability, he was no longer able to coach, trail walk, bicycle or golf. He now had difficulty helping around the house. Cutting grass, gardening, painting and other chores were done by other people or took much more time. He was unable to shovel snow. Because the Veteran was unable to keep up maintenance activities at the house they were currently living in, they were beginning the search for a condo or town house. It was too much work for the Veteran to maintain the house because of his back disability. In a March 2017 statement, the Veteran's friend and co-worker related that he could see that the Veteran's back condition had deteriorated to the point that he rarely sat down at his desk. The Veteran was recently assigned to stay in the office to help other salespeople because he was not able to do many of the physical tasks that he was required to do on the road. Those tasks included helping bring light stock, boxes, etc. into basements, climbing into basements and attics, and bending and squatting. A March 2017 statement from the Veteran's private treating chiropractor cited language from the February 2017 statement of the case and stated that that the Veteran qualified for a 20 percent VA evaluation based on a 2014 private radiology report showing fibrous bony ankylosis in the SI [sacroiliac] joint bilaterally. The chiropractor stated that the radiology report referenced two major joints with degenerative involvement the right SI joint and the left SI joint. An attached May 2014 private x-ray report provides a pertinent impression that fibrous bony ankylosis was suspected involving the SI joints bilaterally. This might be degenerative in nature; however a remote, somewhat atypical inflammatory arthropathy could be considered. The private chiropractor apparently referred to Diagnostic Code 5003 for degenerative arthritis. However, as noted above, a 20 percent evaluation for degenerative arthritis under Diagnostic Code 5003 requires the absence of limitation of motion. In this case, however, the Veteran's degenerative arthritis does result in limitation of motion and therefore Diagnostic Code 5003 does not result in a 20 percent evaluation. Other private medical records dated during the appeal period reflect that the Veteran underwent sacroiliac joint injections for sacroiliitis. During the January 2020 hearing, the Veteran testified that he had shooting pains down his right leg. He sought steroid injections when his back stiffened up. Many times, he had to lay down on the floor if he did not have the steroid treatments. He saw a chiropractor weekly who did pressure points to relive stiffness and pain and also massage. He also underwent radio frequency treatments to kill nerves in his lower back. The report of an October 2020 VA Back (Thoracolumbar Spine) examination provides a diagnosis of degenerative arthritis of the spine, IVDS and spondylolisthesis. The Veteran complained of pain worst with extended periods of standing/walking/sitting, requiring frequent change in positions. Sleep was disrupted by back pain. The pain was described as achy at baseline. Range of motion caused increased pain described as sharp and burning. The pain worsened at night, every night. The pain was across the lumbar region, and was mild to the left of the lumbar spine and worse on the right. It extended to the right gluteus maximus. The Veteran referred to having had the nerve burned off about three years earlier, which the examiner said was likely a reference to rhizotomy. The Veteran had cortisone injections at a private pain clinic. He took naproxen regularly. Flare-ups occurred with physical activity such as cutting grass, prolonged standing or walking. They occurred approximately every 2-3 months and typically lasted three days. The Veteran reported functional loss or functional impairment of the thoracolumbar spine regardless of repetitive use. He stated that pain interfered with ambulation. He could not tolerate prolonged sitting/standing/walking, and range of motion activity including lifting, carrying, bending, pushing/pulling and twisting. Twisting to the left caused increased pain on the right. On examination, initial range of motion was forward flexion to 70 degrees, extension to 30 degrees, lateral flexion to 30 degrees bilaterally, and rotation to 30 degrees bilaterally. The Veteran's decreased range of motion negatively impacted ambulation and range of motion activities involving the lower back. Pain was noted on examination and caused functional loss. Pain was exhibited on forward flexion, extension, left lateral flexion and bilateral rotation. There was pain on weight bearing and non-weight bearing. Passive range of motion of the back was the same as active range of motion with the same objective evidence of pain. The Veteran was able to perform repetitive-use testing with at least three repetitions. There was no additional loss of function or range of motion after three repetitions. The Veteran was not being examined immediately after repetitive-use over time. The examiner stated that the examination was neither medically consistent nor inconsistent the Veteran's statements describing functional loss with repetitive-use over time. Pain significantly limited functional ability with repeated use over time. The examiner described this in terms of range of motion as forward flexion to 70 degrees, extension to 30 degrees, lateral flexion to 30 degrees bilaterally, and rotation to 30 degrees bilaterally. The examination was not being conducted during a flare-up. The examiner stated that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during a flare-up. Pain significantly limited functional ability with flare-ups. The examiner described this in terms of range of motion as forward flexion to 70 degrees, extension to 30 degrees, lateral flexion to 30 degrees bilaterally, and rotation to 30 degrees bilaterally. Results of muscle strength testing, reflex exam and sensory exam were normal. Straight leg testing was negative. In this regard, the examination template provides that a positive test suggests radiculopathy, often due to disc herniation. The Veteran had no radicular pain or other signs or symptoms due to radiculopathy. He had no ankylosis of the spine. He had IVDS, but had not had any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. He occasionally used a cane for lumbar arthritis, IVDS and spondylolisthesis. The Veteran had no other pertinent physical findings, complications, signs or symptoms related to his diagnoses. The report reveals that a November 2012 lumbar x-ray resulted in a pertinent impression of mild multi-level degenerative joint disease seen in the lumbar spine. A May 2013 lumbar MRI showed minimal anterolisthesis of L4, mild degenerative disc disease, and mild posterior degenerative hypertrophic buildup in the lower lumbar. An August 2019 lumbar spine MRI resulted in a pertinent impression of degenerative changes at L4-L5 and degenerative facet arthropathy. The report also reveals that the Veteran's disability impacted his ability to work. He could not tolerate prolonged sitting/standing/walking, twisting, bending or lifting/carrying. The Veteran's disability also impacted his ability to function in an occupational environment. The IVDS resulted in sharp back pain, tenderness to affected area and reduced range of motion in the back. The lumbar arthritis resulted in lower back pain, tenderness to the lower back, reduced range of motion in the lower back and the need for frequent positional change. Spondylolistheses resulted in lower back pain, tenderness to the lower back and reduced range of motion in the lower back. The diagnoses affected the Veteran's functional ability. Due to the diagnoses, the Veteran was not expected to tolerate, and should avoid, prolonged sitting/standing/walking, bending, twisting and lifting/carrying. The Board finds that, with resolution of reasonable doubt in the Veteran's favor, the foregoing evidence supports a 20 percent initial evaluation for lumbar arthritis with IVDS and spondylolisthesis under the General Rating Formula for Diseases and Injuries of the Spine. The pain and functional loss shown by his repeated need for private lumbar injections; the reports of pain, functional loss and flare-ups he made during the hearing and the October 2020 VA examination; the pain, functional loss and flare-ups described in detail by the October 2020 VA examination report; and the testimony of his lay witnesses show that his disability more nearly approximates forward flexion of the thoracolumbar spine to no greater than 60 degrees. Accordingly, the disability warrants an initial evaluation of 20 percent under the General Rating Formula for Diseases and Injuries of the Spine. However, the Board also finds that the preponderance of the evidence is against an initial evaluation in excess of 20 percent under the General Rating Formula for Diseases and Injuries of the Spine. The foregoing evidence does not show forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. The Board also finds that the preponderance of the evidence is against an initial evaluation in excess of 20 percent under the Formula for Rating IVDS Based on Incapacitating Episodes. The October 2020 VA examination report specifies that the Veteran had not had any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. Moreover, the Board observes that Veteran has not contended that his lumbar spine disability has resulted in any incapacitating episodes. The Board acknowledges the Veteran's lay reports of pain, as made during the hearing and the October 2020 VA examination. The Board also acknowledges the reports by the Veteran's witnesses as to their observations of his symptoms. The Veteran is competent to report his symptoms and his witnesses are competent to report the Veteran's observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, even considering these reports, the record does not show limitation of motion approximating forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Accordingly, the reports do not warrant a 40 percent evaluation under the General Rating Formula for Diseases and Injuries of the Spine. The Board also finds that the preponderance of the evidence is against finding of neurological impairment such that a separate compensable rating is warranted. The Board recognizes that during the hearing the Veteran reported shooting pains down his left leg. However, the report of the October 2020 VA examination relates that results of muscle strength testing, reflex exam and sensory exam were normal; straight leg testing was negative; and the Veteran had no radicular pain or other signs or symptoms due to radiculopathy. For the foregoing reasons, the Board finds that the evidence supports an initial 20 percent evaluation for lumbar arthritis with IVDS and spondylolisthesis. However, the preponderance of the evidence is against an initial evaluation in excess of 20 percent. In denying an initial evaluation in excess of 20 percent, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Davitian, 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.