Citation Nr: 21030627 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-45 050 DATE: May 19, 2021 ORDER An initial rating of 40 percent, but no higher, for degenerative osteoarthritis of the lumbar spine is granted. FINDING OF FACT The Veteran's degenerative osteoarthritis of the lumbar spine manifested by severe painful motion with forward flexion approximating 30 degrees or less; the Veteran's low back disability did not manifest by ankylosis or intervertebral disc syndrome (IVDS). CONCLUSION OF LAW The criteria for an initial 40 percent rating for degenerative osteoarthritis of the lumbar spine are 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 Criteria (DC) 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1981 to June 2002. The case is on appeal from a February 2015 rating decision. The Veteran died in November 2018 after appealing the February 2015 rating decision. In November 2019, the Veteran's surviving spouse was granted substitution of claimant upon his death to continue the appeal. In February 2021, the appellant testified at a Board hearing. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). An initial rating in excess of 20 percent for degenerative osteoarthritis of the lumbar spine. General Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Specific Rating Criteria The Veteran's low back disability is rated under DC 5242, which is rated according to The General Rating Formula for evaluating the spine. The General Rating Formula for evaluating the spine provides for a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion 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 disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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 disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Following the rating criteria, Note 1 states: evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate DC. DC 5243 for IVDS requires disc herniation with compression and/or irritation of the adjacent nerve root, and is rated pursuant to incapacitating episodes. A 10 percent rating is warranted with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent rating is warranted for 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 is warranted for 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 is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. 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). Analysis The Veteran filed an appeal to seek a higher rating for his service-connected degenerative osteoarthritis of the lumbar spine. He has been rated at 20 percent for the entire appeal period, which begins in February 2014, when service connection went into effect for this condition. See Fenderson v. West, 12 Vet. App. 119 (1999). At the February 2021 Board hearing, his surviving spouse testified that he had difficulty bending forward, picking up anything from the ground, and putting on shoes, experiencing "pain all the time." The Veteran was afforded a VA examination in January 2015, at which time he described increased pain with frequent bending, heavy lifting, and prolonged walking. His range of motion (ROM) testing was measured at forward flexion up to 45 degrees, with painful motion beginning at 20 degrees. It was also found he had extension from zero to 15 degrees, right and left lateral flexion to 25 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 20 degrees. Pain was noted during ROM testing, but there was no additional limitation based on pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. The examiner also reported there was no IVDS, ankylosis, radiculopathy, other neurological abnormalities, or use of assistive devices. Following the January 2015 VA examination, the Veteran submitted a statement in support of his claim in April 2015, contending that he received an inadequate examination. He asserted that the ROM readings read aloud by the January 2015 examiner did not match what was recorded, with the highest measurement only reaching 30 degrees for forward flexion, after the examiner pushed his head and neck forward while he experienced "extreme pain." Thereafter in November 2016, the Veteran was referred to a VA orthopedic clinic for range of motion measurements. The Veteran indicated that his symptoms were controlled by activity modification and pain medications as required, and that heavy lifting and repeated bending/twisting often triggered his symptoms. The examiner noted pain on palpitation, and measured his forward flexion to approximately 20 degrees, with complaints of significant pain. Extension was measured at zero degrees, and bilateral bends to less than 15 degrees. The Board finds the evidence shows that an initial 40 percent rating is warranted for the Veteran's degenerative osteoarthritis of the lumbar spine. See 38 C.F.R. § 4.71a, DC 5242. This is particularly so when resolving reasonable doubt in the Veteran's favor. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Although the January 2015 examination indicated forward flexion up to 45 degrees, the November 2016 orthopedic examination measured forward flexion limited to 20 degrees with significant pain. This matches the Veteran's lay statements of extreme pain and limitation throughout the appeal period, and corresponds to a 40 percent rating. (Continued on the next page) The Board concludes that a rating in excess of 40 percent is not warranted under DC 5242. A higher rating requires ankylosis to be shown as the 40 percent rating is the maximum rating for limitation of motion. Ankylosis is not evidenced during either the January 2015 or November 2016 examinations. The Board finds this evidence persuasive as to the possible existence of ankylosis, or even functional ankylosis. Without a showing of ankylosis, a rating in excess of 40 percent is not warranted and additional consideration of functional loss is also not warranted. See Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). The Board also concludes that a rating is not warranted under the Formula for IVDS under DC 5243, as the record does not indicate manifestations of IVDS, or any incapacitating episodes due to his low back disability. The Board finds this evidence persuasive as to this aspect of the rating criteria. In sum, the evidence is in favor of a 40 percent rating for the entire appeal period for the Veteran's low back disability. However, the preponderance of the evidence is against a rating in excess of 40 percent. Thus, the benefit of the doubt doctrine is not further applicable, and a rating in excess of 40 percent for degenerative osteoarthritis of the lumbar spine is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morford, 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.