Citation Nr: 21041420 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 15-13 640 DATE: July 9, 2021 ORDER Entitlement to an initial disability evaluation in excess of 10 percent prior to April 16, 2021 and in excess of 20 percent thereafter, for service-connected degenerative disc disease (DDD) with spondylolisthesis, lumbar spine, is denied. FINDINGS OF FACT 1. Prior to April 16, 2021, there is no evidence of 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. 2. From April 16, 2021 to present, there is no evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine, unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. CONCLUSION OF LAW The criteria for an increased initial evaluation in excess of 10 percent for degenerative disc disease (DDD) with spondylolisthesis, lumbar spine, prior to April 16, 2021, and in excess of 20 percent thereafter are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.71, DC 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1972 to October 1977, and from June 1978 to April 1979. In March 2019 and February 2021, the Board of Veterans' Appeals (Board) remanded the Veteran's claim for an increased rating for degenerative disc disease (DDD) with spondylolisthesis, lumbar spine, for additional development. The Board finds that there was substantial compliance with the February 2021 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to an initial disability evaluation in excess of 10 percent prior to April 16, 2021 and in excess of 20 percent thereafter, for service-connected degenerative disc disease (DDD) with spondylolisthesis, lumbar spine Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. Reasonable doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. A 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). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to the absence of part, or all, of the necessary bones, joints, and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant 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. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran's DDD with spondylolisthesis is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242, for degenerative arthritis. Diagnostic Code 5242 is rated under the General Rating Formula for Diseases and Injuries of the Spine. A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, 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 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. For VA compensation purposes, normal range of motion for the thoracolumbar spine is 90 degrees of forward flexion, 30 degrees of extension, 30 degrees of left and right lateral flexion, and 30 degrees of left and right lateral rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees, consisting of the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. 38 C.F.R. § 4.71a, General Rating Formula, Note (2) and Plate V. The Veteran contends that he is entitled to an increased evaluation in excess of 10 percent for DDD with spondylolisthesis, lumbar spine (lumbar spine disability) prior to April 16, 2021, and in excess of 20 percent thereafter. Turning to the record, the Veteran was afforded a VA examination for back conditions in June 2013 whereby he was diagnosed with severe degenerative disc disease of the lumbar spine with spondylolisthesis. He reported flare-ups approximately twice per month. Range of motion findings indicated forward flexion to 90 degrees and extension to 30 degrees and a combined range of motion of the thoracolumbar spine of 240 degrees with no objective evidence of painful motion. There was no additional loss of ROM after repetitive use. The examiner was not able to estimate ROM measurements during flare-ups. He noted no muscle guarding, abnormal gait, muscle atrophy, ankylosis, or IVDS with incapacitating episodes. He did note pain and tenderness on palpitation over the left paravertebral structures as the S-1 level. There were no findings of radiculopathy noted. The Veteran was granted entitlement to service connection for DDD with spondylolisthesis, lumbar spine, with a 10 percent evaluation effective July 17, 2012. The Veteran filed a Notice of Disagreement (NOD) asserting that he was entitled to a higher evaluation for his lumbar spine disability. In March 2019, the Board remanded the issue for further development including a new VA examination. Multiple attempts to schedule the Veteran for a new VA examination for back disabilities were made with no response from the Veteran. In February 2021, the Board again remanded the issue for further development. The Veteran was afforded a VA examination for back conditions in April 2021 whereby the examiner noted the diagnosis of DDD with spondylolisthesis of the lumbar spine. The Veteran reported daily flare-ups whereby he is unable to sit, stand, or walk for extended periods of time. Range of motion findings indicated forward flexion to 65 degrees and extension to 15 degrees and a combined range of motion of the thoracolumbar spine of 180 degrees with pain on extension and forward flexion. The examiner indicated evidence of pain upon active motion with no functional loss or additional limitation of range of motion. The examiner was not able to conduct repetitive use ROM testing due to pain but estimated forward flexion to 60 degrees and extension to 10 degrees after repetitive use and during flare-ups. He noted no evidence of crepitus, pain or tenderness on palpitation, muscle guarding, muscle spasm, abnormal gait, muscle atrophy, instability, ankylosis, or IVDS with incapacitating episodes. He indicated that the Veteran's active and passive range of motion is limited by structural abnormalities of the lumbar spine and not pain. Based on this examination, in a May 2021 rating decision, the Agency of Original Jurisdiction (AOJ) increased the Veteran's evaluation for DDD with spondylolisthesis from 10 percent to 20 percent effective December April 16, 2021. (It is noted that separate ratings were also assigned for radiculopathy of both lower extremities for the femoral nerves and sciatic nerves, and those matters are not at issue in this appeal.) Review of the record does not provide a basis for granting a rating in excess of 10 percent for the Veteran's lumbar spine disability prior to April 16, 2021. There is no evidence of 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 to warrant a higher 20 percent rating prior to the April 2021 VA examination. Further, the evidence does not provide a basis for granting a rating in excess of 20 percent for the Veteran's lumbar spine disability from April 16, 2021 to the present. There is no evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine, unfavorable ankylosis of the entire thoracolumbar spine or the entire spine to warrant a higher evaluation at any time during the appeal period. The Board also reviewed and carefully considered the Veteran's lay statements asserting that the severity of his service-connected spinal disorder warrants an increased evaluation. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to a spinal disorder as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board has also considered whether factors including functional impairment and pain as addressed under 38 C.F.R. §§ 4.40 and 4.45 would warrant higher ratings for the Veteran's lumbar spine disability. However, the VA examinations documented the Veteran limitations due to pain or repetitive use testing and those limitations are reflected in the currently assigned rating. In summation, the Board finds that there is no evidence prior to April 16, 2021 indicating that the Veteran's lumbar spine disability was manifested by 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 to warrant a higher 20 percent rating; and there is no evidence from April 16, 2021 to the present indicating that the Veteran's lumbar spine disability has manifested by forward flexion of the thoracolumbar spine to 30 degrees or less or, favorable ankylosis of the entire thoracolumbar spine to warrant a 40 percent evaluation, unfavorable ankylosis of the entire thoracolumbar spine to warrant a 50 percent evaluation, or unfavorable ankylosis of the entire spine to warrant a 100 percent evaluation. Based on the foregoing, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for DDD with spondylolisthesis prior to April 16, 2021 and in excess of 20 percent thereafter. In denying such a rating, the Board finds that the evidence for this period preponderates against an increase, so the benefit of the doubt provisions is inapplicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Sneeringer, 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.