Citation Nr: 21041231 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-36 680 DATE: July 8, 2021 ORDER Entitlement to an increased disability rating in excess of 20 percent for lumbar spine degenerative disc and joint disease is denied. FINDING OF FACT The Veteran's lumbar spine disability did not manifest in forward flexion of the lumbar spine to 30 degrees or less or exhibit at least favorable ankylosis, or its functional equivalent, of the entire thoracolumbar spine. CONCLUSION OF LAW The criteria for entitlement to an increased disability rating in excess of 20 percent for lumbar spine degenerative disc and joint disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5099-5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1983 to July 1983, from December 2001 to July 2003, and from January 2004 to December 2004. 1. Entitlement to an increased disability rating in excess of 20 percent for lumbar spine degenerative disc and joint disease The Veteran contends that his lumbar spine disability is worse than contemplated by the assigned 20 percent evaluation. After a thorough review of the evidence, the Board finds that a rating in excess of 20 percent for lumbar spine disability is not warranted. The Veteran is currently rated at 20 percent from June 13, 2013 for lumbar spine degenerative disc and joint disease under Diagnostic Code (DC) 5099-5237. When a particular disability is not listed among the diagnostic codes, a code ending in "99" is used; the first two numbers are selected from the portion of the schedule most approximating a Veteran's symptoms. 38 C.F.R. § 4.27. 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. 38 C.F.R. § 4.27. In this case, DC 5099 refers to a musculoskeletal disorder and DC 5237 references lumbar strain. The Veteran has been diagnosed with multiple lumbar spine conditions, but it would be against the regulations regarding pyramiding to assign separate ratings under multiple DCs to the Veteran's lumbar spine. 38 C.F.R. § 4.14 states that "[t]he evaluation of the same disability under various diagnoses is to be avoided." Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Schedule provides for the evaluation of all spine disabilities under a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. See Id., DCs 5235-5243. Under the General Rating Formula, a 10 percent rating is assigned for: forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is assigned 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 evaluation requires forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation requires unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted where unfavorable ankylosis of the entire spine is demonstrated. For VA compensation purposes, normal forward flexion of the thoracolumbar 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. 38 C.F.R. § 4.71a, DCs 5235-5243, Note (2). Ankylosis is a condition in which an entire spinal segment is immobile and fixed in position. Unfavorable ankylosis exists where the fixation is 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; and/or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) is considered favorable ankylosis. 38 C.F.R. § 4.71a, Note (5). The current schedular rating criteria instructs to evaluate intervertebral disc syndrome (IVDS or degenerative disc disease) either under the general rating formula for diseases and injuries of the spine or under the formula for rating IVDS based on incapacitating episodes, whichever method results in the higher evaluation. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (in pertinent part): a 10 percent disability rating is warranted with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1): For purposes of evaluations under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, 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. The Veteran submitted a claim for increased rating for the lumbar spine disability on June 13, 2013. VA law and regulation provide that unless otherwise provided, the effective date of an award of increased evaluation shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of the application. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Regulations also provide that the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400(o)(1). The Board notes that the effective date of an award of increased compensation may, however, be established at the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application for an increased evaluation is received within one year from that date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). For a claim for increased rating, if the increase is factually ascertainable within one year prior to the receipt of the claim, the rating will be effective as of the date of increase; however, if the increase occurred more than one year prior to receipt of the claim, the increase will be effective on the date of claim. Further, if the increase occurred after the date of claim, the effective date will be the date of increase. 38 U.S.C. § 5110 (b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1), (2); VAOPGCPREC 12-98 (1998). As the Veteran is already rated at 20 percent during the period on appeal for the lumbar spine disability, categorized as degenerative disc and joint disease of the lumbar spine, the next highest rating available is 40 percent. At the December 2013 VA examination, the Veteran reported symptomatology of aching in the low back and reported that he took muscle relaxer daily and a pain pill occasionally. The examiner noted no flare-ups reported. The Veteran demonstrated range of motion to forward flexion of 80 degrees of the thoracolumbar spine with a total range of motion to 225 degrees. There was no objective evidence of pain on motion with testing. The range of motion measurements were the same on repeat testing. There was no ankylosis. The examiner confirmed arthritis in the spine via X-ray. The examiner noted that the Veteran had IVDS but that there had not been any incapacitating episodes in the previous 12 months. The examiner estimated that based on the Veteran's description of back pain he would be limited from doing moderate or heavy work regularly but could still do light and sedentary work regularly. The examiner also commented that to estimate loss of range of motion in degrees due to use resulting in fatigue and pain would difficult if not impossible due to varying factors such as the work being done at the time and the ambient temperature. The Board finds the December 2013 examination adequate. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). For increased rating musculoskeletal claims, a VA examiner should state whether pain could significantly limit functional ability. This determination should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain after repeated use over time and/or during flare-ups. The examiner should obtain information from the Veteran regarding the severity, frequency, duration, characteristics, and/or functional loss related to repeated use over time and/or flare-ups. If the examination was not conducted after repeated use over time or during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present. If the examiner cannot provide an opinion as to additional loss of motion after repeated use over time or during a flare-up without resorting to mere speculation, the examiner should make clear that all procurable and assembled data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to repeated use over time and/or flare-ups elicited from the veteran) was considered and that the medical community at large could not provide such an opinion without resorting to mere speculation. See Sharp, 29 Vet. App. at 33. Here, the examiner considered the Veteran's reports of pain and functional loss due to the lumbar spine disability and acknowledged that such symptoms would create additional limitation on the range of motion but the numbers would vary based on the factors present at the time of use. On the Veteran's July 2014 notice of disagreement, he stated that the lumbar spine pain from the bulging discs was increasing and therefore the assigned disability percentage was too low. The Veteran had a VA lumbar spine examination in December 2015. The Board notes that the examiner recorded that he could not speculate on an estimated range of motion for repeated use over time or during flare-ups, accordingly, the Board finds that regarding range of motion measurements, the examination was inadequate. The examiner did not make clear that all procurable and assembled data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to repeated use over time and/or flare-ups elicited from the veteran) was considered and that the medical community at large could not provide such an opinion without resorting to mere speculation. See Sharp, 29 Vet. App. at 33. The Veteran reported 4 episodes of pain daily lasting about 20 minutes and that he took medication three times daily for the low back. The examiner noted that the Veteran had IVDS but that there had not been any incapacitating episodes in the previous 12 months. The Veteran had an MRI in July 2017. The medical provider noted that the imaging showed bulging and stenosis in certain lumbar vertebrae. At the September 2018 Board hearing, the Veteran stated that when he gets up in the morning, he is bent over, and it takes time to straighten up, then it also becomes difficult to bend over. He reported numbness in the legs at times for example when sitting too long like in a car. The Veteran said he does not run for exercise any longer but does use the elliptical machine although it also causes pain. He also stated that it hurts to sit on a bicycle. The Veteran also stated that about one year prior to the hearing, he felt a pinch in his back and needed to use crutches for two weeks because he could not use his legs, which he clarified was not directed by a doctor but was his own decision. The Veteran had a lumbar spine examination in December 2019. The Veteran reported that he could not stand for more than 20 minutes without pain, could not sit for more than one hour at a time due to back pain and that the back was generally in constant pain. The Veteran demonstrated range of motion to forward flexion of 60 degrees of the thoracolumbar spine with a total range of motion to 175 degrees. Functional loss was reported as difficulty picking objects up from the ground when standing. There was no evidence of pain on motion in all directions with testing. The range of motion measurements were the same on repeat testing. The examiner recorded no reported flare-ups. The examiner reported that pain, weakness, fatigability or incoordination would not significantly limit functional ability with repeated use over a period of time. There was no ankylosis. There was no IVDS. The Veteran reported that it took longer to drive places because he had to stop the car and stand up after an hour of driving. The Board finds the December 2019 examination adequate. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The examiner determined that based on the Veteran's reported symptomatology that there would not be increased additional range-of-motion loss due to pain after repeated use over time and recorded no flare-ups. The Board notes the Veteran's contentions regarding his ongoing symptoms and a worsening of his lumbar spine disability during the appeal period. The Veteran is competent to testify to such lay observable symptomatology. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board also finds that the Veteran's statements regarding his reported symptomatology are credible. However, such lay evidence in this case even when accepted as accurate, does not establish a level of disability contemplated by a higher evaluation. The medical evidence shows that the Veteran's lumbar spine disability was manifested by forward flexion greater than 30 degrees but not greater than 60 degrees, but not less than 30 degrees which is the diagnostic criterium for a higher 40 percent disability rating, or a showing of ankylosis. The Veteran's lumbar spine disability did not exhibit incapacitating episodes within the meaning of the Schedule for IVDS that would meet a higher 40 percent disability rating. Nor does the Veteran's lumbar spine disability manifest in ankylosis, required for the next highest ratings. The Court of Appeals for Veterans Claims recently decided that analysis of functional loss equivalent to ankylosis is applicable to evaluations for spinal disabilities. Chavis v. McDonough, U.S. App. Vet. Claims LEXIS 660 (2021). 38 C.F.R. §§ 4.40 and 4.45 permit for a higher evaluation to be awarded where there is additional functional loss and/or limitation of motion due to factors such as pain, weakened movement, excess fatigability, and incoordination, during flare-ups and/or after repeated use over time. See Mitchell, 25 Vet. App. at 36-37; DeLuca, 8 Vet. App. at 205-06. The evidence in the present case does not demonstrate that the Veteran has the functional equivalent of ankylosis, either favorable or unfavorable, of the thoracolumbar or entire spine. The Veteran is able to bend over, although he states he has constant pain and has to shift from standing to sitting positions due to low back pain; that is, the Veteran's back does not have functional loss equivalent to a fixed position of the spine. Accordingly, the Board finds that the Veteran's lumbar spine disability does not warrant a disability rating higher than 20 percent and the appeal is denied. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Miller, 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.