Citation Nr: 21031894
Decision Date: 05/24/21	Archive Date: 05/24/21

DOCKET NO. 09-06 218
DATE: May 24, 2021

ORDER

Entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the lumbar spine, with traumatic characteristics, prior to January 15, 2015, is denied.

Entitlement to a disability rating in excess of 20 percent for degenerative joint disease of the lumbar spine, with traumatic characteristics, from January 15, 2015 to April 22, 2019, is denied.

Entitlement to a disability rating in excess of 40 percent for degenerative joint disease of the lumbar spine, with traumatic characteristics, from April 23, 2019 is denied.

FINDINGS OF FACT

1. Prior to January 15, 2015, the Veteran's forward flexion of the spine was limited to 80 degrees, at worst, with pain at 50 degrees, and there was neither evidence of ankylosis nor guarding or muscle spam severe enough to result in an abnormal gait or abnormal spinal contour; there was also no evidence of any form of ankylosis.

2. From January 15, 2015 to April 22, 2019, despite medical evidence documenting prescriptions for back pain medications and complaints of chronic pain, there was no evidence of ankylosis, and even taking in consideration his reports of functional limitations due to flare-ups, there ie neither objective nor subjective evidence of functional limitations other than inability to perform heavy lifting, and painful motion when bending and stooping; there is also no indication that additional/new prescriptions were prescribed or the doses for pain medications increased over time for his back pain.

3. From April 23, 2019, the Veteran's forward flexion of the spine was limited to 25 degrees, at worst, and his muscle strength/reflex exam results were normal, with neither evidence of muscle atrophy nor any form of ankylosis. 

CONCLUSIONS OF LAW

1. The criteria for an entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the lumbar spine, with traumatic characteristics (lumbar disability), prior to January 15, 2015, have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.71a, Diagnostic Code 5010-5242.

2. The criteria for an entitlement to a disability rating in excess of 20 percent for degenerative joint disease of the lumbar spine, with traumatic characteristics (lumbar disability), from January 15, 2015 to April 22, 2019, have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.71a, Diagnostic Code 5010-5242.

3. The criteria for an entitlement to a disability rating in excess of 40 percent for degenerative joint disease of the lumbar spine, with traumatic characteristics (lumbar disability), from April 23, 2019, have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.71a, Diagnostic Code 5010-5242.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from April 1974 to May 1975, from November 1990 to April 1991, and from October 2006 to November 2007. The Veteran also had additional service in the Army National Guard.

These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

With regards to the Board hearing that was scheduled for September 10, 2010, the Veteran had requested it be postponed, which has been acknowledged by RO. See August 2020 VA 21-4238 form and Report of General Information. 

This case has a long procedural history. This case was previously before the Board in August 2015, in which the Board remanded the matter for further development. In February 2016, the Board denied the Veteran's claims for rating in excess of 10 percent prior to January 15, 2015, and in excess of 20 percent, thereafter, for lumbar spine disability. The Veteran filed an appeal to the U.S. Court of Appeals for Veterans Claims (CAVC) contesting the Board's February 2016 decision. In September 2019, the CAVC issued a Memorandum Decision, vacating the February 2016 Board decision and remanding the matter to the Board for further development consistent with the Memorandum Decision. In doing so, the Court found that the Board erred when it found the April 2015 VA examination adequate (as the examiner failed to consider the Veteran's lay statement regarding any additional functional loss during flare-ups) and by failing to adequately consider favorable statements regarding low back difficulties, to include effects of medications, for a period prior to January 15, 2015. In September 2020, the Board remanded the case again for further development. Pursuant to the Board remand, adequate VA examination and medical addendum opinion have been obtained. As such, there has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998).

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist or with the conduct of his Board hearing. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard.

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is a balance of positive and negative evidence regarding any material issue, the benefit of the doubt shall be given to the claimant. See 38 U.S.C. § 5107 (b). Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. See 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54.

The Board has reviewed all the evidence of record. Although the Board has an obligation to provide adequate reasons and bases supporting its decisions, there is no requirement that the Board discuss every piece of evidence in the record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to each claim.

Increased Rating

Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes (DCs). 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3.

The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating 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.

Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007).

When considering a claim for an increased disability rating, the Board must not consider the ameliorative effects of medication unless those effects are explicitly contemplated by the relevant rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 61 (2012). As neither DC 5010 nor 5242 addresses the effects of medication, the Board must consider the ameliorative effects of the Veteran's medications used to alleviate the Veteran's back pain. 

Turning to the issue of increased rating for the lumbar spine disability, the Board notes that the Veteran is currently rated under DC 5010-5242. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. During the appeal period, RO granted a higher rating of 20 percent, effective January 15, 2015, and 40 percent, effective April 23, 2019, under DC 5010-5242, for the Veteran's lumbar spine disability. However, as higher and separate ratings are available, the increased rating claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). 

During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. See 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. The Board is allowed to consider these changes, although the RO has not yet done so. 38 C.F.R. § 20.904(d)(2) (remand to the AOJ is not necessary for consideration of law not already considered by the AOJ, including regulations).  

If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. 

Prior to the recent amendment, DC 5242 provided criteria for degenerative arthritis of the spine, referencing DC 5003. As of February 7, 2021, the amended version of DC 5242 provides criteria for degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome, and references DC 5003 and 5010. Regardless, both versions of the regulations instruct that DCs 5235 to 5243 to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. 

Under either version of the General Rating Formula, a 20 percent disability rating is assigned for forward flexion of the lumbar spine greater than 30 degrees, but not greater than 60 degrees; or, combined range of motion of the lumbar 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 lumbar spine 30 degrees or less; or, favorable ankylosis of the entire lumbar spine. A 50 percent evaluation is assigned for unfavorable ankylosis of the entire lumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine.

Additionally, Note 1 following the General Rating Formula specifies that any associated objective neurologic abnormalities including but not limited to bowel or bladder impairment are to be separately evaluated under an appropriate DC. Note 2 following the General Rating Formal provides that normal forward flexion of the lumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. See 38 C.F.R. § 4.71a, DCs 5235 through 5242.

Under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, a 10 percent evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent evaluation 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. A 60 percent rating requires incapacitating episodes having a total duration of at least six weeks during the past 12 months. Note 1 following the Formula for Rating IVDS specifies that an incapacitating episode is 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, DC 5243.

With regards to the DC 5003 referenced in DC 5242, the pre-amended version provides criteria for degenerative arthritis (hypertrophic or osteoarthritis), while the amended version provides criteria for degenerative arthritis, other than post-traumatic. However, the rating criteria itself remains the same. 

As for DC 5010, the pre-amended version provides criteria for arthritis due to trauma, substantiated by x-ray findings and instructs that it be rated as degenerative arthritis. 

The amended version of DC 5010 provides criteria for post-traumatic arthritis, and instructs that it rate as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with § 4.25.

1. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the lumbar spine, with traumatic characteristics, prior to January 15, 2015 

The Veteran seeks a higher disability rating for his lumbar disability. He claims experiencing increasing back pain that require daily pain medications and a back brace, as well as discomfort, difficulty bending, lifting, walking, and numbness/tingling/shaking of legs. 

As noted above, the Veteran is currently in receipt of a 10 percent under DC 5010-5242 prior to January 15, 2015. 

The Veteran first underwent a VA examination in March 2008. He reported persistent, progressively worsening pain and spasm, and severe pain occurring several times per week, which tends to worsen with overuse (described as aching pain with spasm in the lower back, each episode lasting about 1-2 days, occurring about 1-6 days per week). There was neither evidence of pain medication nor radiculopathy, and the examiner indicated that there is no history of trauma to the spine or of hospitalization/surgery. There was objective evidence of spasm and guarding, but none severe enough to result in abnormal gait or spinal contour. He presented normal gait, "normal" motor/sensory/reflex exams, but for ankle jerk reflex exam (1+).  As for the limitation of range of motion (ROM) of forward flexion, his active and passive ROM was each limited to 80 degrees, with pain beginning at 60 degrees for active ROM, and at 50 degrees for passive ROM. While pain was noted on active/passive motion and after repetitive use, there was no additional loss of motion post-repetitive use.  His extension of active and passive ROM was each limited to 25 degrees, with pain beginning at 20 degrees respectively, due to pain. Although pain was noted on active/passive motion and post-repetitive use, there was no loss of motion. There was also no evidence of IVDS. As for any limitation on walking, he was noted to be able to walk for more than 14 mile but less than a mile. Regarding functional limitation, he was found to have decreased mobility, problems with lifting and carrying, weakness/fatigue, and pain, as well as significant effect on usual occupation (construction work) and usual daily activities.  

During an August 2011 VA examination, the Veteran was diagnosed with chronic lumbar spine sprain. He described his pain as sharp, constant with varying level of intensity (rated as 5-6/10 with medications), and reported continuous treatments with medications, heat, and TENS unit at home. He denied any flare-ups. His initial ROM of forward flexion of thoracic spine was limited to 85 degrees, with objective evidence of painful motion at 75 degrees, extension to 30 degrees or greater, with objective evidence of painful motion at 20 degrees. Right lateral flexion was limited to 25 degrees, with no objective evidence of painful motion, right lateral rotation to 30 degrees or greater, with no objective evidence of painful motion, and left lateral rotation to 30 degrees or greater, with no objective evidence of painful motion. There was no evidence of guarding or muscle spasm nor of muscle atrophy.  He manifested "normal" muscle strength/reflex/sensory exams, besides the "decreased" right thigh/knee sensory exam. There was evidence of radiculopathy (moderate right sciatic nerve and mild left sciatic nerve), but no other neurologic abnormalities. Although the examiner indicated the presence of IVDS, there was none resulting in incapacitating episodes over the past 12 months. Occasional use of cane was noted, but the examiner stated that there are no imaging studies of vertebral fracture or arthritis. As for functional impact, he was noted to have missed 16 weeks of work in the last 12 months due to his back condition. 

Since then, two retrospective opinions for assessing the severity of the Veteran's lumbar spine disability prior to January 15, 2015 were obtained. With regards to the first opinion obtained since the June 2018 Board remanda September 2019 VA medical addendum opinionthe examiner at the time opined that he would have to resort to speculation because he needed additional information regarding the conditions of the Veteran's back prior to January 15, 2015. Thus, the Board remanded again in September 2020 for obtaining a new medical addendum opinion. 

Subsequent to the September 2020 Board remand, a new VA medical addendum opinion (retrospective opinion as to period prior to January 2015) was obtained in February 2021. After acknowledging the Veteran's reports of pain and his continuous use of various medications, the February 2021 VA examiner stated that his ROM would diminish from repetitive use over time and during a flare-up. He then described such limitations in ROM. First, after repetitive use over time, his limitation of forward flexion was noted to be limited to 85 degrees, extension to 25 degrees, right lateral flexion and left lateral flexion to 15 degrees each, and right lateral rotation and left lateral rotation to 20 degrees each. During a flare-up, his limitation of ROM of forward flexion was limited to 80 degrees, extension to 20 degrees, right lateral flexion and left lateral flexion to 15 degrees each, and right lateral rotation and left lateral rotation to 15 degrees each. The examiner also opined that the Veteran's condition would be mild and that he would not have been able to participate in such physically demanding activities (ie. bending, lifting, pushing, pulling car parts) if his back condition was as debilitating as he alleges. 

The Veteran's VA treatment records show back pain of varying degrees, as well as treatments received for back pain, to include his prescribed pain medications. However, these records do not otherwise provide pertinent information relating to limitation of motion.  

After reviewing all pertinent records, the Board finds that the Veteran does not warrant a rating in excess of 10 percent under DCs 5010-5242 throughout this period. 

Initially, the Board reiterates that the pre-amended version references DC 5003 which directs evaluations be made based on limitation of motion under the appropriate diagnostic codes for the specific joint involved (i.e. DC 5242). DC 5242 is to be evaluated under the General Rating Formula unless IVDS resulting in incapacitating episodes is implicatedin which case, evaluation under either the General Rating Formula or the Formula for Rating IVDS based on incapacitating episodes, whichever results in a higher evaluation, is applicable. First, turning to the criteria under the General Rating Formula, the Board recognizes the Veteran's report of constant pain with varying degree of severity, functional impact/impairments, and continuous treatments, to include constant use of medications for alleviating back pain. However, even considering Jones and the Veteran's lay statements/reports, the Board concludes that the severity of the Veteran's back condition does not warrant a higher rating throughout the appeal period. Initially, throughout this period, despite objective and subjective finding of constant varying level of pain, continuous treatments, to include pain medications, and functional impairments, the Board points out that his ROM of flexion was, at worst, limited to 80 degrees, with pain beginning at 50 degreesand he was consistently found to have normal motor, sensory and reflex exams (other than the "decreased" right thigh/knee sensory exam during the August 2011 VA examination), with no evidence of muscle atrophy. Furthermore, there was neither evidence of any form of ankylosis, nor of guarding or muscle spam severe enough to result in an abnormal gait or abnormal spinal contour. Such finding is further corroborated by the February 2021 VA medical addendum opinionwhich was obtained specifically for addressing the severity of his back condition prior to January 2015 (retrospective opinion). Even after taking into consideration the Veteran's reports of pain, functional impairments, and use of continuous medications, the February 2021 VA examiner concluded that the Veteran's condition prior to January 2015 would be mild and further described the ROM of his flexion as limited to 85 degrees after repetitive use over time, and as 80 degrees during a flare-up, and stated that his functional limitations are inability to engage in certain physically demanding activities (bending, lifting, pushing, pulling car parts). 

The Board also considered the possibility of warranting a higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, but finds such not applicable. Even though the Veteran was found to have IVDS, there was neither objective nor subjective evidence of IVDS resulting in any incapacitating episodes. In light of these findings, the Board finds that the Veteran does not warrant a rating in excess of 10 percent throughout this period. 

The Board also considered the possibility of awarding a higher rating with consideration of 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995), Thompson v. McDonald, 815 F. 3d 781 (Fed. Cir. 2016), Mitchell v. Shinseki, 25 Vet. App. 32, 36 (2011). The U.S. Court of Appeals for Veterans Claims (CAVC) recently held in Chavis v. McDonough, No. 18-2928 (U.S. Vet. App., April 16, 2021) that application of §§ 4.40 and 4.45 permits consideration under the General Rating Formula for Diseases and Injuries of the Spine of an evaluation based on ankylosis if a claimant's functional loss is consistent with that contemplated by ankylosisin other words, if the demonstrated functional loss is the functional equivalent of ankylosis. In Chavis, the CAVC noted that the rating criteria define ankylosis in terms of limitation of motion. See 38 C.F.R. § 4.71a, General Rating Formula, Note (5) (ankylosis is a condition in which the spine or a spinal segment is fixed in flexion or extension). Essentially, ankylosis contemplates "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012); see also Villareal v. Principi, 18 Vet. App. 13 (2001) (defining ankylosis to mean that "a joint is fixed, or 'frozen' in one position").  

In this case, although the Board acknowledges the Veteran's lay reports of symptoms of decreased mobility, problems with lifting/carrying, weakness/fatigue/pain, limited ability to walkall indicative of some functional lossthe Board concludes that such alleged functional loss is not consistent with that contemplated by ankylosis. Notably, there is no suggestion of any limited motion of the spine comparable to any type of immobility; he was still able to perform forward flexion and his forward flexion was limited to 80 degrees at worst, with pain beginning at 60 degrees. Also, to the extent that the Veteran has experienced functional loss due to pain, he has not alleged functional impairment comparable to that experienced by an individual with immobility of part of the spine.  His symptoms are fully contemplated by the assigned schedular rating. The DeLuca concepts of functional loss, painful motion, etc. are still used to apply the rating criteria found in the diagnostic codes.  Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016) and Mitchell v. Shinseki, 25 Vet. App. 32, 36 (2011).  The Thompson court explained: "Section 4.40 also makes clear that functional loss may be due to pain and that pain may render a part seriously disabled. When evaluating a disability, § 4.40 provides a broad canvas. However, whatever the background, an applicant for disability benefits is rated based on the criteria set forth in § 4.71a."  Thompson, 815 F.3d at 786.  So, in other words, pain alone without it resulting in any functional loss is not enough to warrant an increased rating.  The Veteran was also able to perform after repetitive use testing, even with objective evidence of pain, without any additional limitation of range of motion.  As such, the current rating adequately compensates him for his pain with limited motion, and a higher rating is not warranted under DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995), nor is his disability the equivalent of ankylosis.

The Board considered the Veteran's lay assertion that he has varying level of chronic back pain that can be severe at times and that he has been receiving treatments for his lower back (to include continuous use of and the effects of pain medications). The Board finds these statements to be credible and competent to the extent that they relay the professing witness's own experiences and personal observations. Layno v. Brown, 6 Vet. App. 465 (1994). However, since the degree of the Veteran's impairment depends on the clinically significant symptoms and objectively measurable criteria under the rating schedule, the Board affords greater evidentiary weight to the contemporaneous medical records and objective examinations by medical professionals over the subjective lay statements offered by the Veteran. 

The Board has also considered whether an increased rating is warranted under other diagnostic codes pertaining to the back disability (i.e. DCs 5235-5241, 5243). Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the Board finds such not applicable. Here, the Veteran does not have vertebral fracture or dislocation, sacroiliac injury and weakness, spinal stenosis, ankylosing spondylitis, traumatic paralysis, or spinal fusion. Moreover, although the Veteran was found to have IVDSi.e. DC 5243 (IVDS)the Board points out that none of such episodes were not found to result in any incapacitating episodes.  

With regards to any associated neurological abnormalities, there is evidence of radiculopathy in the right and left lower extremities. As for the radiculopathy of the right lower extremity, RO initially granted service connection with a 10 percent rating under DC 8520, effective July 14, 2009, and later, granted a higher rating of 20 percent under DC 8520, effective April 23, 2019. With regards to the radiculopathy of the left lower extremity, RO granted service connection with a 20 percent rating effective April 23, 2019, under DC 8520. RO did not include these issues in the subsequent SOC/SSOC, so the Veteran was not led to believe these issues would be considered by the Board. Moreover, a previous Board remand (September 2020 Board remand) clearly indicated that these issues are not on appeal. The Veteran has not submitted any statements suggesting that he believes these issues are part of his appeal, and his representative has not argued the ratings for radiculopathy of the bilateral lower extremities are part of this appeal. Accordingly, entitlement to a higher disability rating for the radiculopathy of the right and left lower extremities are not before the Board. As this conclusion is applicable throughout the entire appeal period, the Board will not provide a separate analysis section below. There are no other neurological abnormalities. 

As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

2. Entitlement to a disability rating in excess of 20 percent for degenerative joint disease of the lumbar spine, with traumatic characteristics, from January 15, 2015 to April 22, 2019

As noted above, the Veteran is in receipt of a 20 percent rating effective January 15, 2015 to April 22, 2019 under DC 5010-5242. 

The Veteran underwent a VA examination in April 2015but as discussed above, the parties to the memorandum decision agreed that the Board previously erred (i.e. February 2016 Board decision) when it accepted the April 2015 examination report as adequate, because the April 2015 examiner had failed to consider the Veteran's lay statements about the extent of additional functional loss during flare-ups. However, as the remaining portion of the examination was not found to be inadequate, the Board will address the findings and the Veteran's reports documented in the April 2015 VA examination. 

During the April 2015 VA examination, the Veteran was diagnosed with degenerative joint disease of lumbar spine with traumatic characteristics of lumbar spine (as well as right L5-S1 radiculopathy). He reported increasing pain to his lower back and having used pain medications (Tramadol and Tylenol #3) since separating from service, as well as radiating pain/numbness in right lower extremity. As for any flare-ups, he indicated constant pain (6 or 8 out of 10), occurring several times per month. Regarding any functional impairment, he stated his inability to perform heavy lifting, as well as significant pain with bending and stooping. His initial ROM of forward flexion was limited to 90 degrees, extension to 30 degrees, with a combined ROM of 210 degrees (of thoracolumbar spine). There was no evidence of pain with weight bearing, and while pain was noted on exam, it was not found to result in functional loss. After repetitive use, his forward flexion was limited to 60 degrees, extension to 20 degrees, and combined ROM to 170 degrees. The Veteran was not examined immediately after repetitive use over time nor during a flare-up, and the examiner stated that he is unable to speculate based on the Veteran's subjective complaints and lack of objective evidence. His muscle strength was "normal," with no evidence of muscle atrophy. His reflex exam result was 1+, and sensory exam either "normal" or "decreased." There was evidence of radiculopathy (mild right sciatic nerve), but no other neurologic abnormalities. He was not found to have ankylosis or IVDS. Regarding diagnostic testing, the examiner indicated arthritis, and with regards to functional impact, the Veteran reported pain while working as a mechanic (bending and stooping) and his inability to perform heavy lifting.  

His treatment records document complaints of pain (5, 6, or 7 out of 10), continued prescriptions for back pain (Cyclobenzaprine HCL 10mg tab 1 tablet at bedtime for back pain, Tramadol 50mg tab 1 tablet every day as needed for back pain), pain medication giving some relief, extended standing/walking/bending aggravating back pain, as well as other means of treatments (ie. TENS, exercises), but do not include information relating to limitations of ROM. 

In considering the evidence of record, the Board finds no basis for the assignment of a disability rating in excess of 20 percent under either version of DC 5242 (only the General Rating Formula is applicable, as there is no evidence of IVDS) throughout this period. The Veteran manifested forward flexion limited to 60 degrees, at worst, and his muscle strength was normal, with no evidence of muscle atrophy or any form of ankylosis. The Board acknowledges that the April 2015 VA examiner failed to take into consideration the Veteran's reports of additional functional losses during flare-ups. However, even taking into consideration his reports made during the examination (constant pain scaled as 6-8 out of 10 during flare-ups, occurring several times a month; inability to perform heavy lifting, as well as significant pain with bending and stooping) and ameliorative effects of his pain medications in lieu of Jones, there is neither objective nor subjective evidencedespite there being voluminous medical records, to include contemporaneous VA treatment recordsindicative of pain resulting in a functional loss of such level that the Veteran's spine is immobile or abnormally stiff (i.e. ankylosis), or results in a limitation of motion warranting a rating in excess of 20 percent. Notably, the extent of functional limitations per the Veteran's report were only the difficulty bending, stooping, and inability to perform heavy lifting, as well as pain aggravated by extended standing/walking/bending (the worst pain being 7-8/10). There was no evidence of pain with weight bearing, and even though pain was noted on exam, it was not found to result in or cause functional loss. More importantly, although there is medical evidence documenting prescriptions for pain medications and complaints of chronic pain of ranging level, there is no indication that any additional/new prescriptions were prescribed or that the doses for existing prescriptions increased over time for treating his back pain (which would tend to suggest worsening back pain), and it seems there was constantly fluctuating level of pain throughout the appeal period (which was relieved by his medications). In light of these findings, the Board finds that the Veteran does not warrant a rating in excess of 20 percent. 

The Board considered whether the Veteran would be entitled to a higher rating on the basis of 38 C.F.R. §§ 4.40 and 4.45 and in lieu of Chavis. DeLuca, 8 Vet. App. 202, 204-7 (1995), Thompson, 815 F. 3d 781 (Fed. Cir. 2016), Mitchell, 25 Vet. App. 32, 36 (2011). While the Veteran reported functional loss of inability to perform heavy lifting, as well as painful motion (when bending and stooping), the Board finds these not functional equivalents of ankylosis. In fact, these symptoms have been fully contemplated by the Veteran's assigned schedular rating (ie. less movement than normal, weakened movement, and pain/movement), and although there was additional loss of ROM, he was still able to perform repetitive use testing with at least three repetitions. As such, the current rating adequately compensates him for his pain with some limited motion, and a higher rating is not warranted under DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995).

Last but not least, the Board has also considered whether an increased rating is warranted under other diagnostic codes pertaining to the back disability (i.e. DCs 5235-5241, 5243). Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the Board finds such not applicable. Here, the Veteran does not have vertebral fracture or dislocation, sacroiliac injury and weakness, spinal stenosis, ankylosing spondylitis, traumatic paralysis, or spinal fusion. Moreover, although the Veteran was found to have IVDSi.e. DC 5243 (IVDS)the Board points out that none of such episodes were found to require physician-prescribed bed rest and treatment.  

Accordingly, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

3. Entitlement to a disability rating in excess of 40 percent for degenerative joint disease of the lumbar spine, with traumatic characteristics, from April 23, 2019 

The Veteran is in receipt of a 40 percent for his lumbar spine disability from April 23, 2019, under DC 5010-5242. 

During an April 2019 VA examination, the Veteran was diagnosed with degenerative joint disease of the lumbar spine with traumatic characteristics with IVDS. He reported pain and stiffness and stated he takes Gabapentin for pain. His initial ROM of forward flexion was limited to 40 degrees. Pain was noted on examination with forward flexion, and there was evidence of pain with weight bearing. After performing repetitive-use testing, his forward flexion was limited to 35 degrees due to lack of endurance and pain. Although he was not examined immediately after repeated use over time and during a flare-up, the examiner identified pain and lack of endurance as factors causing his functional loss, and described his forward flexion as limited to 30 degrees and 25 degrees, respectively. There was no evidence of muscle atrophy, and his muscle strength and reflex exam results were normal. There was no evidence of ankylosis, and while the Veteran was noted to have IVDS, the examiner explained that the Veteran has not had any episodes of IVDS requiring physician-prescribed bed rest or treatment in the past 12 months. As for any functional impact, the examiner indicated difficulty walking for more than 1 block/climbing more than 1 flight of stair/lifting more than 25 pounds, and also indicated that he regularly uses a cane.  

The Veteran underwent another VA examination in February 2021, during which time he was diagnosed with degenerative arthritis. His initial active and passive ROM of forward flexion of thoracolumbar spine was limited to 50 degrees, each, even with evidence of pain, and his ROM itself was found to contribute to a functional loss of limited ROM of back. After observed repetitive use of ROM, there was no additional loss of function or ROM. Even though he was not examined immediately after repeated use over time, the examiner identified pain as the factor causing his functional loss, and described his limitation of ROM of forward flexion as limited to 45 degrees. Moreover, although he was not examined during a flare-up, the examiner indicated that his limitation of ROM of forward flexion would be limited to 40 degrees. His muscle strength/reflex exam/sensory exam results were all normal, with no evidence of radiculopathy, other neurologic abnormalities, or IVDS. There was also no evidence of any form of ankylosis. The examiner described his functional limitation as standing limited to 10 minutes, walking limited to a quarter mile at a time without any rest, and limited capability to lift a gallon or more, consistent with the Veteran's report. 

His treatment records only show complaints of chronic pain and does not include information pertaining to ROM or functional losses. 

After reviewing all records, the Board finds that the Veteran is not warranted a rating in excess of 40 percent from April 23, 2019 under either version of DC 5010-5242. Even taking into consideration his report of pain and his condition requiring continuous pain medications, as well as ameliorative effects of his pain medications, there was no evidence of any form of ankylosis. The Veteran manifested forward flexion of the thoracolumbar spine limited to 25 degrees, with normal muscle strength/reflex exam results, and negative finding for muscle atrophy. He was able to perform repetitive use testing with no additional limitation of motion. The only functional limitations, as reported by the Veteran, were limited ability to stand/walk for a prolonged period and limited capability to lift items, none indicative of immobility of his spine. Thus, the Veteran's claim is denied. 

The Board also considered the possibility of awarding a higher rating with consideration of 38 C.F.R. §§ 4.40 and 4.45. Even taking into consideration the holding in Chavis, the Board finds that the Veteran's demonstrated functional loss is not functional equivalent of ankylosis. In this case, although the Board acknowledges the Veteran's lay reports of symptoms of limited ability to stand/walk/lift, there is no indication of limited motion of the spine that is comparable to any type of immobility. In this case, he was still able to perform forward flexion and his forward flexion was limited to 25 degrees, at worst. Also, to the extent that the Veteran has experienced functional loss due to pain, he has not alleged functional impairment comparable to that experienced by an individual with immobility of part of the spine.  His symptoms are fully contemplated by the assigned schedular rating. Furthermore, the Veteran was also able to perform after repetitive use testing, even with objective evidence of pain, without any additional limitation of range of motion.  As such, the current rating adequately compensates him for his pain with limited motion, and a higher rating is not warranted under DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995).

The Board has also considered whether an increased rating is warranted under other diagnostic codes pertaining to the back disability (i.e. DCs 5235-5241, 5243). Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the Board finds such not applicable. Here, the Veteran does not have vertebral fracture or dislocation, sacroiliac injury and weakness, spinal stenosis, ankylosing spondylitis, traumatic paralysis, or spinal fusion. Moreover, although the Veteran was found to have IVDSi.e. DC 5243 (IVDS)the Board points out that none of such episodes were found to require physician-prescribed bed rest and treatment.  

As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

 

 

B. G. LeMoine

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Lee

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.