Citation Nr: 21041032 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 16-56 234 DATE: July 7, 2021 ORDER Entitlement to an increased rating for lumbar spine degenerative disc disease, rated as 10 percent disabling prior to August 19, 2016, a 20 percent rating from August 19, 2016 to October 18, 2019 and 40 percent thereafter, is denied. FINDINGS OF FACT 1. For the period on appeal prior to August 19, 2016, the Veteran's lumbar spine degenerative disc disease manifested as forward flexion of 90 degrees at worst, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups without muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, ankylosis, incapacitating episodes due to intervertebral disc syndrome or associated objective neurological abnormalities such as bowel or bladder impairments. 2. For the period on appeal from August 19, 2016 to October 17, 2019, the Veteran's lumbar spine degenerative disc disease manifested as forward flexion of 60 degrees at worst, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups without ankylosis, incapacitating episodes due to intervertebral disc syndrome or associated objective neurological abnormalities such as bowel or bladder impairments. 3. For the period on appeal from October 18, 2019 onward, the Veteran's lumbar spine degenerative disc disease manifested at worst, forward flexion of the thoracolumbar spine to 35 degrees even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups without intervertebral disc syndrome requiring medically prescribed bedrest, objective neurological abnormalities such as bowel or bladder impairments or ankylosis. CONCLUSION OF LAW The criteria for entitlement to increased rating for lumbar spine degenerative disc disease, rated as 10 percent disabling prior to August 19, 2016, a 20 percent rating from August 19, 2016 to October 18, 2019 and 40 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.40, 4.59, 4.71a, Diagnostic Codes 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1966 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision issued by a Department of Veterans Affairs Regional Office (RO). This matter previously came before the Board in February 2020 whereupon it was remanded back to RO for additional development, to include obtaining outstanding VA and private records, and to schedule the Veteran for a VA examination to determine the current nature and severity of his lumbar spine degenerative disc disease. Updated VA treatment records have been associated with the record and VA examinations were conducted in August 2016 and October 2019. The Board therefore determines that there has been substantial compliance with its previous remand. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers the right to compliance with remand orders). The matter has returned to the Board for further appellate action. In an August 2020 rating decision, the agency of original jurisdiction (AOJ) granted a 20 percent rating for lumbar spine degenerative disc disease, effective August 19, 2016. In addition, a June 2020 rating decision granted a 40 percent rating for lumbar spine degenerative disc disease, effective October 18, 2019 as well as granted service connection for left and right lower extremity radiculopathy. However, a higher rating is available for lumbar spine degenerative disc disease. The Veteran is presumed to seek the maximum available benefit for a disability. As such, this claim is still considered to be on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). An August 2020 rating decision found that clear and unmistakable error had occurred in a prior rating decision and assigned an effective date of November 5, 2010 for the award of service connection for lumbar spine degenerative disc disease. Increased Rating Criteria Disability evaluations are determined by evaluating the extent to which a veteran's service connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Where there is a question as to which of two evaluations (ratings) shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40); see also DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability, and incoordination. 38 C.F.R. § 4.45. Where entitlement to compensation has already 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). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 1. Entitlement to Increased Rating for Lumbar Spine Degenerative Disc Disease The Veteran asserts that he is entitled to an increased rating for his lumbar spine condition, specifically because his symptoms are more severe than contemplated by the currently assigned ratings. The Veteran's condition has been evaluated pursuant to Diagnostic Code 5242 under the General Rating Formula for Ratings of the Musculoskeletal System. 38 C.F.R. § 4.71(a). The formula provides that a 10 percent rating is assigned when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; when the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; when muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, when vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; when the combined range of motion of the cervical spine is not greater than 120 degrees; or, when muscle spasm or guarding is 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 assigned when forward flexion of the thoracolumbar spine is 30 degrees or less; or when there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned when there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. The Board notes that effective February 7, 2021, the criteria for schedule of ratings for the musculoskeletal system was revised. See 86 Fed. Reg. 8142 (Feb. 4, 2021) (codified at 38 C.F.R. pt. 4). In the instant case, the applicable rating period occurred before the implementation of these revised diagnostic criteria with regard to all evidence submitted after February 7, 2021. However, the diagnostic criteria for Diagnostic Code 5242 are identical under the former and revised diagnostic codes. 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. Fixation of the spinal segment in a neutral position (zero degrees) is indicative of favorable ankylosis, not unfavorable ankylosis. For VA compensation purposes, normal forward flexion of the lumbar spine is from zero to 90 degrees; normal extension is zero to 30 degrees; normal left and right lateral flexion are zero to 30 degrees; and normal left and right lateral rotation are zero to 30 degrees. The normal combined range of motion (the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation) for the lumbar spine is 240 degrees. In exceptional cases, an examiner may state that due to age, body habits, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even if the individual's range of motion findings fall short of what is considered normal generally. Provided that the examiner supports his conclusion with an explanation, the examiner's assessment will be accepted. The Board's February 2014 decision granted the Veteran service connection for degenerative disc disease of the lumbar spine, effective June 28, 2007. The Veteran's condition has been assigned the following ratings: 10 percent disabling from June 28, 2007 to August 18, 2016; 20 percent disabling from August 19, 2016 to October 17, 2019; and 40 percent disabling thereafter. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). As such, the Board will review evidence from each of these periods on appeal to determine whether the Veteran's disability has been properly rated. Appeal Period Prior to August 18, 2016 A May 2011 VA examination reflected the Veteran's reports of flare-ups of moderate back pain, that occur weekly, last one to two days, that were the result of increasing overuse and repetitive motion and resulted in more restriction with regards to the back. Stiffness, spasm and incapacitating episodes of spine disease were denied. Gait was found to be antalgic and there was no abnormal spinal curvatures or ankylosis. Physical examination of the spine was negative for spasm, atrophy, guarding, pain with motion, tenderness and weakness. There was no muscle spasm, localized tenderness or guarding severe enough to be responsible for abnormal gait or abnormal spinal contour. Flexion was found to be to 90 degrees, extension was found to be to 20 degrees, left lateral flexion was found to be to 90 degrees, left lateral rotation was found to be to 20 degrees, right lateral flexion was found to be to 30 degrees and right lateral rotation was to 30 degrees. There was objective evidence of pain on active range of motion and following repetitive motion. There was no additional limitations after three repetitions of range of motion. The Board has reviewed a treatment note from July 2013 which evaluates the Veteran's back pain and notes degenerative changes in the Veteran's lumbar spine. The Veteran is noted as having difficulty walking for more than ten minutes. Another treatment note from November 2013 notes the Veteran reporting pain in his lower back at a level 8 out of 10. A treatment note from May 2014 notes the Veteran's "chronic back pain" and mentions that the Veteran plans on starting chiropractic therapy soon. Other treatment notes from throughout 2013 and 2014 all document the Veteran's ongoing back pain but do not specifically mention range of motion findings. The Board has also reviewed a VA treatment note from January 2016 denoting the Veteran's complaint of back pain radiating to his hips. The Veteran's pain was described at level 8 out of 10. The note does not mention range of motion findings. The Board finds that a rating in excess of 10 percent prior to August 19, 2016 for a lumbar spine degenerative disc disease is not warranted. Forward flexion was found to be 65 degrees and combined range of motion was found to be to 150 degrees, both at worst, in a December 2007 VA examination report. There was no clinical evidence showing limitation in forward flexion to 30 degrees, a combined range of motion of 120 degrees or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour of the thoracolumbar spine during any part of the appeal period, even with consideration of painful motion and other factors discussed in DeLuca. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. None of the clinical records reflect such criteria as required for a higher rating based on range of motion. Id. The Board notes that the Veteran has described painful motion of the thoracolumbar spine and has considered the provisions of 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, supra. However, there is no objective evidence that this painful motion has resulted in measurable functional impairment. In this regard, the Veteran reported pain, fatigue and weakness. However, even in considering the Veteran's subjective complaints, the evidence of record does not support any additional limitation of function in response to repetitive motion or flare-ups that would support a rating in excess of the 10 percent assigned prior to August 19, 2016. See DeLuca v. Brown, supra; Mitchell v. Shinseki, supra; 38 C.F.R. §§ 4.40, 4.45, 4.59. The Board notes that arguments of the Veteran's attorney in the October 2016 substantive appeal that a mere 2.51 degrees separates the Veteran from a higher rating and that hence a higher rating is warranted. The December 2007 VA examination found forward flexion to be to 65 degrees and that there was objective evidence of pain on range of motion. The examination did not indicate that there was additional functional loss on repetitive motion testing or that pain further limited motion. However, this examination was conducted prior to the award of service connection in this case. The May 2011 VA examination found flexion to be to 90 degrees. Moreover, there is no basis for the Board to award a higher rating simply because the objective range of motion found on examination is close to the requirements for the next higher rating in an examination that occurred several years prior to the award of service connection. This argument is therefore without merit. Appeal Period From August 19, 2016 to October 17, 2019 The Veteran was provided another VA examination in August 2016. The examination revealed range of motion findings of forward flexion at 60 degrees; extension at 20 degrees; right lateral flexion at 20 degrees; left lateral flexion at 20 degrees; right lateral rotation at 20 degrees; and left lateral rotation at 20 degrees. Objective evidence of pain was noted. Repetitive use testing was performed and did not result in additional loss of function or range of motion limitation. Flare-ups were denied but the Veteran reported that daily pain was made worse with bending forward and with most movements. The Veteran was noted as using a cane to help him walk. Guarding was not found. The Board finds that a 20 percent rating for a lumbar spine degenerative disc disease is not warranted for this appeal period. The Veteran's forward flexion was found to be to 60 degrees, at worst, during the August 2016 VA examination, even with consideration of painful motion and other factors discussed in DeLuca v Brown, supra. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. None of the clinical records reflect such criteria as required for a higher rating based on range of motion. Id. The Board notes that the Veteran has described painful motion of the thoracolumbar spine and has considered the provisions of 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v Brown, supra. In this regard, the Veteran reported back pain that is worse with bending over, walking and all movements. However, even in considering the Veteran's subjective complaints, the evidence of record does not support any additional limitation of function in response to repetitive motion or flare-ups that would support a rating in excess of the 20 percent assigned for the appeal period from August 19, 2016 to October 18, 2019. See DeLuca v. Brown, supra; Mitchell v. Shinseki, supra; 38 C.F.R. §§ 4.40, 4.45, 4.59. Appeal Period Beginning on October 18, 2019 The Veteran was provided another VA examination in October 2019. The examination revealed range of motion findings of forward flexion at 35 degrees; extension at 10 degrees; right lateral flexion at 10 degrees; left lateral flexion at 10 degrees; right lateral rotation at 10 degrees; and left lateral rotation at 15 degrees. Objective evidence of pain was noted and found to cause functional loss. There was evidence of pain upon weight bearing. Guarding and muscle spasms were both noted and found to cause abnormal gait/abnormal spine contour. The Veteran was noted to guard during active and passive range of motion testing with a left-leaning antalgic gait. Ankylosis was not found. A review of the evidence of this appeal period shows that a higher rating, in excess of 40 percent, is not warranted for this period. A 50 percent rating requires a showing of is unfavorable ankylosis of the entire thoracolumbar spine. The Veteran's October 2019 VA examination found no incidence of ankylosis, favorable or unfavorable. In addition, the Veteran's examinations throughout the appeal period have been consistently negative for ankylosis and the Veteran has retained range of motion in the lumbar spine. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). Therefore, the Board finds that, at no time during the appeal period has the Veteran's service-connected lumbar spine disorder resulted in ankylosis warranting a higher rating. Thus, the Board finds that a higher rating, in excess of 40 percent is not warranted for the appeal period after October 17, 2019. Other Considerations Furthermore, as the evidence fails to show that the Veteran has intervertebral disc syndrome with incapacitating episodes resulting in bed rest ordered by a physician at any point pertinent to the appeals period, a higher or separate rating is not warranted under the intervertebral disc syndrome Rating Formula for any point during the appeal period. In addition to considering the orthopedic manifestations of a back disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. However, the Veteran has not alleged, and the evidence does not show, that he has bladder impairment or bowel impairment as a result of his service-connected lumbar spine degenerative disc disease. Moreover, the Veteran is already in receipt of separate ratings for left and right lower extremity radiculopathy and has separately appealed the assigned ratings under the Appeals Modernization Act. Therefore, the Board finds that, at no time during the appeal period, has the Veteran's service-connected lumbar spine degenerative disc disease resulted in neurological impairment of the bowel or bladder warranting an additional separate rating. In assessing the severity of the Veteran's lumbar spine degenerative disc disease the Board has given due consideration to the competent lay assertions regarding symptoms experienced and observed. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support higher ratings involve medical findings that are within the province and purview of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the Veteran's lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his lumbar spine according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has considered the effects of repeated use over time and flare-ups along with the adequacy of the VA examination in light of the Court's holdings in Correia and Sharp. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board finds that the Veteran's VA examinations were compliant with Correia and Sharp. In this case, the December 2007 and October 2016 VA examinations were conducted prior to Correia and Sharp and provides only partial information as described above. Pain was noted on examination in the December 2007, October 2016 and October 2019 VA examination reports. The effect of pain on range of motion is described above. Regarding repeated use over time, the Board notes that December 2007 and October 2016 VA examiners conducted repetitive-use testing and concluded that there was no additional limitation in range of motion. The October 2019 VA examiner also conducted repetitive-use testing and concluded that pain caused additional limitation of motion. The October 2019 VA examination reflected measurements for active and passive range of motion as well as range of motion testing in weight-bearing and nonweight-bearing. As the lumbar spine is not a paired joint, it is not possible to measure range of motion in the undamaged joint. Regarding flare-ups, the Board notes that the Veteran denied experiencing flare-ups in the December 2007 and October 2016 VA examinations. The Veteran reported flare-ups and the October 2019 VA examiner noted that the examination was being conducted during a flare-up. Therefore, the examinations of records are adequate for rating purposes. Therefore, the Board finds that all information required for rating purposes has been provided. See Correia v. McDonald, supra; see also Sharp v. Shulkin, supra. The Board has also considered whether a further staged rating under Hart, supra, is appropriate for the Veteran's service-connected lumbar spine degenerative disc disease; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning a further staged rating for such disability is not warranted. Further, the Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record, with regard to such claim. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The Veteran has not asserted at any point in time, and the record does not so indicate, that he is unable to secure and maintain employment due to his service-connected degenerative disc disease. Therefore, a TDIU has not been raised. Accordingly, the Board finds the currently assigned ratings for each of the periods on appeal to be properly assigned and a higher rating is not warranted for any of the periods on appeal. As the preponderance of the evidence is against a higher rating, the benefit of the doubt doctrine is not for application in this matter. Thus, higher ratings are denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kashif I. Ali, 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.