Citation Nr: 21041990 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 10-07 188 DATE: July 10, 2021 ORDER A disability rating higher than 10 percent from September 20, 2007 to January 2, 2020, for degenerative arthritis of the lumbar spine, is denied. FINDING OF FACT The Veteran's degenerative arthritis resulted in a decreased range of motion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, but does not result in a 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. CONCLUSION OF LAW The criteria for a rating higher than 10 percent from September 20, 2007 to January 2, 2020, for degenerative arthritis of the lumbar spine, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5242 and 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served from June 1973 to June 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in April 2015 and July 2017, wherein the Board remanded the appeal for new examinations. In an October 2018 decision, the Board denied entitlement to a rating in excess of 10 percent for the Veteran's service-connected thoracolumbar spine disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In July 2019, the Court issued an Order granting a Joint Motion for Remand (JMR) as the Court found that the Board erred by relying on a September 2017 VA examination that inadequately addressed the issue of the nature of additional functional loss, if any, that the Veteran experienced due to pain, weakness, fatigability or in coordination with repeated use over time. A December 2019 Board decision remanded the issue for compliance with the holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017). Thereafter, the case was before the Board in December 2020. In December 2020 the Board remanded the case for further development. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Board may consider whether separate ratings may be assigned for separate periods of time, a practice known as "staged ratings," whether or not the claim concerns an initial rating. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The diagnostic codes for musculoskeletal disabilities were revised, effective February 7, 2021. Claims, such as this, pending prior to the effective date will be considered under both old and new rating criteria from that date, and whichever criteria is more favorable to the Veteran will be applied from that date. However, in the present instance, the diagnostic codes for the Veteran's service-connected spine disability are the same both prior to and after February 7, 2021. The Veteran was granted service connection for lumbar spine strain and assigned an initial 0 percent rating under 38 C.F.R. § 4.71a, DC 5237 effective from July 2007. Thereafter, the rating was increased to 10 percent in November 2005 and then to 40 percent in January 2020. DCs 5242 and 5237 is part of the General Rating Formula for Diseases and Injuries of the Spine. A 20 percent rating under that formula is assigned when forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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. In the present case, the Veteran's back disability did not meet the criteria for a rating higher than 10 percent between September 20, 2007 and January 2, 2020. In October 2007, the Veteran's range of forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation were 0 to 90, 0 to 30, 0 to 30, 0 to 30, 0 to 30, 0 to 30, 0 to 30 degrees, respectively. After repetition, the Veteran's range of forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation were 0 to 80, 0 to 30, 0 to 30, 0 to 30, 0 to 30, 0 to 30, 0 to 30 degrees, respectively. In January 2008, the Veteran had the same range of motion as he did in October 2007. In July 2016 the Veteran's forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation were 0 to 70, 0 to 20, 0 to 20, 0 to 30 and 0 to 30 degrees, respectively. The Veteran's range of motion was the same after repetition. In January 2020, the Veteran's forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation 0 to 30, 0 to 10, 0 to 15, 0 to 15, 0 to 30 and 0 to 30. Upon repetition, the Veteran's forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation was 0 to 20, 0 to 5, 0 to 10, 0 to 10, 0 to 25, and 0 to 25, respectively. During the relevant period, the Veteran's spine never showed signs to warrant a higher rating. In October 2014, the Veteran did not report back pain as a problem. During the relevant period, the most regular problem was an antalgic gait, but according to July 2016 and September 2017 VA examiners that was not caused by guarding or spasms. In the July 2016 VA examination, it was noted that the Veteran could not sit for long periods of time. However, in September 2017, the VA examiner found that the Veteran did not have any functional loss. This is despite complaints of pain associated with lifting, bending, walking, and standing. Considering the Veteran's complaints of pain and noted functional loss, the disability rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a , and the findings of pain, functional loss, and limitations on activities do not more nearly approximate a higher disability rating. Accordingly, the Board finds that a disability rating higher than 10 percent from September 20, 2007 until January 2, 2020, is not warranted based on functional impairment at any time during the appeal period (prior to December 19, 2011). 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Between September 20, 2007 and January 2, 2020, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The General Rating Formula contemplates separate ratings for neurologic abnormalities. However, the record lacks neurologic abnormalities or findings related to a thoracolumbar spine condition. The Veteran complained of tingling in his feet. However, VA medical records from December 2013 attribute numbness tingling to his knee disability. There is no evidence that the tingling is related to the Veteran's thoracolumbar disability. As a result, the Board will not consider separate ratings for neurologic abnormalities. In rendering the decisions below, the Board acknowledges that the Veteran may attribute tingling to his back pain. However, the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of such medically complex disabilities. In addition, there is no indication that the Veteran experiences incapacitating episodes as defined in 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). Therefore, a rating under that formula is not warranted. The above findings illustrate that the 10 percent rating was proper during the relevant period, and a greater 20 percent rating is not warranted under DC 5242 or 5237. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Chalker, Phillip 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.