Citation Nr: 21040820 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 17-00 265 DATE: July 7, 2021 ORDER A rating in excess of 20 percent prior to September 22, 2015, and in excess of 40 percent thereafter, for degenerative arthritis of the lumbosacral spine, is denied. FINDINGS OF FACT 1. Prior to September 22, 2015, the Veteran's degenerative arthritis of the lumbar spine was primarily manifested by forward flexion to, at worse, 40 degrees, with no evidence of ankylosis or intervertebral disc syndrome (IVDS). 2. From September 22, 2015, the Veteran's degenerative arthritis of the lumbosacral spine has been primarily manifested by forward flexion limited to 20 degrees after repetitive motion, without evidence of ankylosis or IVDS. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent prior to September 22, 2015, for degenerative arthritis of the lumbosacral spine 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. 2. The criteria for a rating in excess of 40 percent from September 22, 2015, for degenerative arthritis of the lumbosacral spine 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 FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1987 to January 1988 and from June 1988 to October 1990. The case was previously before the Board in January 2019 when it was remanded for further development of the evidence. This was accomplished and the case has been returned for further appellate consideration. Entitlement to a rating in excess of 20 percent prior to September 22, 2015, and in excess of 40 percent thereafter, for degenerative arthritis of the lumbosacral spine The Veteran contends his low back disorder is more disabling than evaluated. It is asserted that the VA examinations demonstrate the Veteran manifests significant symptoms that warrant a higher rating. Review of the record shows that service connection was granted for a low back disorder by rating decision dated in April 1991; a 20 percent rating was assigned at that time. The Veteran's current request for an increased rating was made in August 2012. The Veteran's lumbosacral spine arthritis is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. 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. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire 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. Id. at 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. 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. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (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. An examination was conducted by VA in October 2012. At that time, the diagnosis was degenerative disc disease of the lumbar spine. On examination, the Veteran stated he had not had any flare-ups of his thoracolumbar spine disorder. Range of motion included forward flexion to 60 degrees, with painful motion beginning at 10 degrees. Extension was to 10 degrees, with pain at 10 degrees. Right and left lateral flexion was to 10 degrees, with pain noted at 10 degrees; and rotation was to 10 degrees, bilaterally, with pain noted at 10 degrees, bilaterally. The Veteran was able to perform repetitive use testing without additional limitation of motion. Functional loss was described as less movement than normal; weakened movement; pain on movement; deformity; and interference with sitting, standing, and/or weight-bearing. There was localized tenderness noted across the lower lumbar region, but no evidence of muscle spasm. Strength was normal. There was no muscle atrophy. Reflexes were normal. Sensory examination was normal. Straight leg raising tests were negative. There was no radiculopathy and no evidence of intervertebral disc syndrome (IVDS). An examination was conducted by VA in May 2014. The Veteran stated that he had chronic back pain problems that were gradually getting worse. He had pain, ache, soreness, and tenderness. Repetitive bending or lifting bothered his back. He had to change positions frequently and could stand for only a half-hour. He wore a back brace at times. He did not describe specific flare-ups and stated that he could function on the job with normal mobility. Physical examination showed normal station and gait. There was no obvious or fixed deformity. There was tenderness over the lumbar spine with some muscle spasms noted. Flexion was to 40 degrees. He could bend laterally and rotate to 20 degrees, with limitations by pain. There was no sciatic notch tenderness with straight leg raising, but pain was noted between 75 and 80 degrees. Muscle strength testing was normal with no muscle atrophy. Deep tendon reflexes were hypoactive at the knees and ankles. Sensory examination was decreased at the left ankle and left foot. There were no trophic changes. Gait was normal. There was moderate incomplete paralysis of the right and left leg. An examination was conducted by VA on September 22, 2015. The Veteran reported having no flare-ups of his thoracolumbar spine disorder. He reported functional impairment as "can't ball my toes hurts when I walk on it." Range of motion was forward flexion to 30 degrees, extension to 20 degrees, right and left lateral rotation to 15 degrees, and right and left rotation to 15 degrees. The Veteran stated that the limitation of motion contributed to functional loss in that he could not bend ot pick anything from the floor. Pain was noted in all planes of motion and caused functional loss. There was no objective evidence of localized tenderness. There was no pain on weight bearing. The Veteran was able to perform repetitive use testing, but there was additional limitation of forward flexion to 20 degrees. Factors that caused functional loss included pain, weakness, and incoordination. The Veteran was being examined immediately after repetitive use over time, but was not conducted during a flare-up. There was no guarding, muscle spasm, or localized tenderness. Factors contributing to disability included less movement than normal, weakened movement, instability of station, disturbance of locomotion, and interference with sitting and standing. Muscle strength testing was 4/5 at the hips, knees, and ankles. There was no muscle atrophy. Reflexes were 1+ at the knees and ankles. Sensory examination was decreased at both ankles and the left toe and absent in the right foot. Straight leg raising was negative. There was radiculopathy with moderate intermittent pain, paresthesias, and numbness on the right. There was moderate radiculopathy on the right. There was no ankylosis and no evidence of IVDS. The Veteran used a cane for ambulation. Functional impact was reported as being unable to go up steps and that his feet hurt when standing. The most recent examination conducted by VA was in July 2019. The diagnosis was lumbar intervertebral disc disease with radiculopathy. The Veteran had constant low back pain of the lumbar area with radiation down both lower extremities. There were no bowel, bladder, or voiding symptoms. The pain was described as a tightness, ache and sharp at times with spasms. He had morning stiffness with worsening pain as the day progressed. He rated the pain as 5-6/10 at best, with 10/10 at worse. He could sit or stand for 10-15 minutes at a time and walk approximately 14 mile. Repetitive use, bending, leaning, cold, and damp weather aggravated the symptoms. Alleviating factors included rest, avoidance, changing positions frequently, use of a back brace, heat, and a TENS unit. The Veteran reported no flare-ups, but stated that he had functional loss. Range of motion was forward flexion to 30 degrees, extension to 10 degrees, right lateral flexion to 15 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 30 degrees. While sitting in a chair, the Veteran was noted to be able to flex forward to at least 70 degrees and did have significant pain on range of motion testing. Effort was said to be questionable. Pain was noted in all planes except left lateral rotation. There was pain with weight bearing. There was tenderness to palpation along the lumbar spinous processes, bilateral paraspinal muscles sacroiliac joints and into both buttocks. The Veteran was able to perform repetitive use testing without additional functional loss. The examination was not conducted after repetitive use over time, but was considered medically consistent with the Veteran's statements describing functional loss. Pain and fatigue limited functional ability with repeated use over time. There was no muscle spasm, but there was guarding that resulted in abnormal gait or abnormal spinal contour. Disturbance of locomotion, interference with sitting, and standing contributed to disability. Muscle strength testing was normal, with no muscle atrophy. Deep tendon reflexes were 1+ at the knees and ankles. Sensation was decreased at both knees, ankles, and feet. Straight leg raising was negative. There was moderate intermittent radicular pain and mild paresthesias and numbness of both lower extremities. There were signs of moderate radiculopathy of both lower extremities. There was no ankylosis. There was evidence of IVDS, but no incapacitating episodes over the past 12 months. Regarding functional impact, the Veteran reported that he had missed work one to two days per month due to low back disability. The examiner remarked that there is pain on weight bearing, non-weight bearing and on active range of motion. Passive range of motion is not considered practical with the lumbar spine. The Board finds that, prior to September 22, 2015, the preponderance of the evidence is against a rating in excess of 20 percent for the Veteran's lumbar spine disability. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to less movement than normal; weakened movement; pain on movement; deformity; and interference with sitting, standing, and/or weight-bearing. Even considering these symptoms and noted functional loss; however, the degree of additional limitation reflected by the statements and examination reports would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Significantly, the May 2014 VA examination report showed forward flexion to 40 degrees, which demonstrates a worsening of the disability, but not enough to warrant a rating in excess of 20 = percent. The Veteran did not have complaints of flare-ups. Consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. The Veteran did not have IVDS prior to the July 2019 VA examination. Moreover, there is no evidence of record showing that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Regarding neurological impairment, the Veteran has already been granted service connection for radiculopathy involving each of his lower extremities and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. Based on the foregoing, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for degenerative arthritis of the lumbar spine prior to September 22, 2015, In denying such a rating, 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. As of September 22, 2015, the Veteran's low back rating has been increased to 40 percent disabling. After review of the record, the Board finds that the preponderance of the evidence is against a rating in excess of 40 percent. As described above, the Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, weakened movement, and incoordination, but these symptoms do not result in disability that more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. There is no evidence of ankylosis on any examination in the record. As noted above, while there is evidence of IVDS, there is no evidence that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating based on IVDS. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 40 percent for degenerative arthritis of the lumbar spine. In denying such a rating, 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. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph P. Gervasio 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.