Citation Nr: 21031468 Decision Date: 05/22/21 Archive Date: 05/22/21 DOCKET NO. 12-08 071A DATE: May 22, 2021 ORDER Entitlement to a rating in excess of 40 percent for degenerative joint disease of the lumbar spine ("back disability") on and after September 25, 2012 is denied. FINDING OF FACT The Veteran does not have unfavorable ankylosis of the spine or symptoms comparable to unfavorable ankylosis. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 40 percent for degenerative joint disease of the lumbar spine ("back disability") on and after September 25, 2012 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 2007 to June 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a September 2013 travel Board hearing before the undersigned Veterans Law Judge (VLJ) and a transcript of the hearing is associated with the claims file. In June 2020, the Board denied an initial rating in excess of 10 percent for degenerative joint disease of the lumbar spine prior to September 25, 2012, granted a rating of 40 percent effective September 25, 2012, and remanded the matter of a rating in excess of 40 percent from September 25, 2012 onward to obtain outstanding records and an updated VA examination. The outstanding records were obtained, and an adequate VA examination was conducted. Therefore, the Board finds that the remand instructions were substantially complied with and further remand is unnecessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran seeks a rating in excess of 40 percent for his service-connected degenerative joint disease of the lumbar spine, from September 25, 2012 onward. Currently, his disability is rated at 40 percent under 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula, a 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. For VA compensation purposes, 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. See id. Note (5). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. Additionally, 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. The Veteran was afforded VA spine examinations in December 2010, September 2012, July 2014, and December 2020. The December 2010 examination predates the time period on appeal; therefore, it will not be discussed. At the September 2012 examination, initial range of motion (ROM) testing revealed forward flexion to 50 degrees with pain at 30 degrees, and repetitive ROM testing revealed flexion to 35 degrees with weakened movement, pain on movement, and disturbance of locomotion. The Veteran reported daily flare-ups but did not specify severity, and estimated impact on ROM was not discussed. The examiner noted that guarding and/or muscle spasms were present but did not result in abnormal gait or spinal contour. Separately, the examiner did not document whether there was ankylosis of the spine but noted that there were no other neurologic abnormalities and the Veteran did not have intervertebral disc syndrome (IVDS). At the July 2014 examination, initial range of motion testing revealed forward flexion to 40 degrees with pain at 40 degrees, and repetitive ROM testing revealed flexion to 30 degrees with less and weakened movement, pain on movement, and disturbance of locomotion. The Veteran reported flare-ups with 10/10 pain 27 days out of the month, but estimated impact on ROM was not discussed. The examiner noted that guarding and muscle spasms were present and both resulted in abnormal gait and/or spinal contour. Separately, the examiner documented that there was no ankylosis of the spine, no other neurologic abnormalities, and the Veteran did not have IVDS. Most recently, at the December 2020 examination, initial range of motion testing revealed forward flexion to 20 degrees with pain, and repetitive ROM testing revealed no additional loss of function or ROM after three repetitions. The Veteran reported severe daily flare-ups that are precipitated by prolonged standing, too much movement, and overactivity, with estimated impact reducing forward flexion to 15 degrees. The examiner documented that guarding and muscles spasms were present and both resulted in abnormal gait and/or abnormal spinal contour. Separately, the examiner documented that there was no ankylosis of the spine, no other neurologic abnormalities, and the Veteran did not have IVDS. The Board reviewed the Veteran's VA and private treatment records which are associated with the claims file. Most of the Veteran's private treatment records are from his pain management specialist, Dr. E.R. who documented from December 2012 to March 2018 that the Veteran's extension decreased by 10 degrees and flexion decreased to 60 degrees. Separately, the VA treatment records noted that the Veteran had full back flexion ROM in September 2014, limited forward flexion in January 2016, and full back ROM with flexion in January 2018. At an August 2019 clinic visit, he reported that he was no longer having as much generalized joint and back pain, and his overall 2019 VA treatment records report his back pain as stable. He consistently reported back pain since 2012, but indicated an increase in pain for weeks following car and motorcycle accidents in 2014 and a separate car accident in 2018. Notably, the Veteran's overall VA and private treatment records showed that the Veteran consistently denied bowel and urinary incontinence, and they did not document unfavorable ankylosis or symptoms comparable to unfavorable ankylosis. After review of the medical and lay evidence, the Board finds that a rating in excess of 40 percent from September 25, 2012 onward is not warranted. In making this decision, the Board contemplated the principles outlined in 38 C.F.R. §§ 4.40 and 4.45 and based the ratings on the extent to which motion is limited by the factors outlined in those regulations. See Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016). The evidence shows that at no point during the relevant period on appeal did the Veteran have unfavorable ankylosis of the spine. The Board considered the Veteran's contentions that his injury has gotten worse since his September 2013 MRI, but finds that the evidence does not demonstrate that his disability causes symptoms like unfavorable ankylosis. The Board recognizes the recent precedential decision from the United States Court of Appeals for Veterans Claims (Court) regarding functional ankylosis and 38 C.F.R. §§ 4.40 and 4.45. See Chavis v. McDonough, No.18-2928, 2021 U.S. App. Vet. Claims, LEXIS 660, *20 (Apr. 16, 2021). The Board's finding that the evidence does not demonstrate that the Veteran's disability causes symptoms like unfavorable ankylosis also contemplates whether the functional equivalent of unfavorable ankylosis was present at any point during the relevant appeal period, pursuant to Chavis. Even with consideration of additional functional loss, the evidence does not reflect lumbar spine motion that approximates unfavorable ankylosis. Thus, a higher rating is not warranted. Separately, the medical evidence does not show that the Veteran has neurological manifestations resulting from his back condition that would warrant a separate rating other than those abnormalities that are already service-connected. Accordingly, the Veteran's claim of entitlement to a rating in excess of 40 percent for degenerative joint disease of the lumbar spine on and after September 25, 2012 is denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Tierno 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.