Citation Nr: 21042517 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 08-24 026 DATE: July 13, 2021 ORDER Entitlement to an initial evaluation in excess of 10 percent prior to May 21, 2014; in excess of 20 percent from May 21, 2014, to July 11, 2019; in excess of 40 percent from July 12, 2019, to August 15, 2019, and in excess of 20 percent thereafter for degenerative disc disease of lumbar spine with spondylosis is denied. FINDING OF FACT 1. Prior to May 21, 2014, the Veteran's lumbar spine degenerative disc disease with spondylosis is manifest by forward flexion to 90 degrees with a combined range of motion to 240 degrees and muscle spasms without abnormal gait or spinal contour or vertebral body fracture with loss of 50 percent or more of height. 2. From May 21, 2014, to July 11, 2019, the Veteran's lumbar degenerative disc disease with spondylosis is manifest by forward flexion to no less than 40 degrees. 3. From July 11, 2019, to August 15, 2019, the Veteran's lumbar degenerative disc disease with spondylosis is manifest by forward flexion to no less than 30 degrees. 4. From August 15, 2019, the Veteran's lumbar degenerative disc disease with spondylosis is manifest with forward flexion to no less than 45 degrees with a combined range of motion to no less than 135 degrees. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent prior to May 21, 2014; in excess of 20 percent from May 21, 2014, to July 11, 2019; in excess of 40 percent from July 12, 2019, to August 15, 2019; and in excess of 20 percent thereafter for degenerative disc disease of lumbar spine with spondylosis 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 FINDING AND CONCLUSION The Veteran served on active duty from March 1989 to July 1993. This matter comes before the Board of Veterans' Appeals (Board) from a March 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in December 2011, July 2016, July 2018, August 2020, and December 2020. The Veteran appealed the Board's July 2016 decision to the United States Court of Appeals for Veteran's Claims (Court). In a November 2017 Memorandum decision, the Court vacated the Board's decision and remanded the matter for readjudication. The July 2018 and August 2020 Board decisions remanded this matter for further development. The Board finds there has been substantial compliance with the Board's prior remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to an initial evaluation in excess of 10 percent prior to May 21, 2014; in excess of 20 percent from May 21, 2014, to July 11, 2019; in excess of 40 percent from July 12, 2019, to August 15, 2019, and in excess of 20 percent thereafter for degenerative disc disease of lumbar spine with spondylosis is denied. The Veteran contends that he is entitled to a higher initial rating for his service-connected degenerative disc disease of lumbar spine with spondylosis. Service connection for the lumbar spine was granted in a March 2011 rating decision with a 10 percent rating effective June 21, 2007. The current appeal period stems from this grant of service connection. For the reasons that follow, the Board finds entitlement to a higher rating is not warranted at any time during the appeal period. The criteria for evaluating spine disabilities were amended effective February 7, 2021. As the current appeal was certified to the Board prior to February 7, 2021, the Board will consider both versions of Diagnostic Codes 5242 and 5243 and apply whichever is more favorable to the Veteran. Prior to February 7, 2021, Diagnostic Code 5242 applied to arthritis of the spine and provides that such is evaluated under the criteria for 38 C.F.R. § 4.71a, Diagnostic Code 5003, which provides that degenerative arthritis is to be rated on the basis of limitation of motion of the affected joint under the appropriate Diagnostic Code for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint group or minor joint group affected by limitation of motion. In the absence of limitation of motion, a 20 percent evaluation is provided where there is X-ray evidence of involvement of two or more major joints, or two of more minor joint groups with occasional incapacitating exacerbations. A 10 percent evaluation is provided where there is X-ray evidence of involvement of two or more major joints, or two of more minor joint groups without exacerbations. Since February 7, 2021, Diagnostic Code 5242 applies to degenerative arthritis and degenerative disc disease other than intervertebral disc syndrome. Diagnostic Code 5242 provides that degenerative arthritis other than prost-traumatic arthritis, is to be rated under Diagnostic Code 5003 on the basis of limitation of motion of the affected joint under the appropriate Diagnostic Code for the specific joint or joints involved, and posttraumatic arthritis is to be rated under Diagnostic Code 5010 as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with §4.25. 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. 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. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id. at Note 2. 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 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. As a preliminary matter, the Board notes that although the Veteran presented for VA examinations in February 2010, March 2015, and March 2019, these examinations were not fully compliant with the requirements set forth by Correia, 28 Vet. App. 158 and Sharp, 29 Vet. App. at 33. However, the reports do contain some relevant findings that are included herein. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent prior to May 21, 2014; in excess of 20 percent from May 21, 2014, to July 11, 2019; in excess of 40 percent from July 12, 2019, to August 15, 2019, and in excess of 20 percent thereafter for degenerative disc disease of lumbar spine with spondylosis. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain and lack of endurance. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he has difficulty with bending, lifting, standing, or walking for prolonged periods would not result in symptoms consistent with an increased rating at any point during the appeal period. An August 2007 VA treatment record notes low back pain and medication for low back spasms. An August 2007 VA radiology report notes evidence of increased disc desiccation when compared to the prior examination along with very mild decrease in the height of the intervertebral disc and mild central and right paracentral disc bulge without thecal sac stenosis. A June 2008 VA treatment record notes low back pain with full flexion and limited range of motion. A February 2009 VA treatment record notes low back pain. The Veteran underwent a VA examination in February 2010. During the examination, the Veteran reported stiffness, spasms, decreased motion, paresthesias, numbness, and weakness in the spine and leg. He reported difficulty with bending or lifting. Range of motion testing revealed flexion to 90 degrees with pain at 60 degrees, extension to 30 degrees with pain at 15 degrees, bilateral lateral flexion to 30 degrees with pain at 20 degrees, and bilateral rotation to 30 degrees. Combined range of motion of the thoracolumbar spine was 240 degrees. The examiner noted joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. The examiner noted no intervertebral disc syndrome (IVDS) on examination. An October 2011 VA treatment record notes low back pain with multiple arthralgias and musculoskeletal pain. The physician noted no tenderness but extremely limited range of motion. December 2011 VA treatment records note back pain. A June 2012 radiology report notes mild degenerative disc disease with disc narrowing at the L3/L4 levels and minimal chronic anterior wedging of L1. An August 2014 VA treatment record notes lumbar spine flexion to 45 degrees and extension to 20 degrees. The Veteran underwent a VA examination in March 2015. The Veteran reported tenderness, stiffness, weakness, easy fatigue, lack of endurance, heat, loss of range of motion, and popping. The Veteran reported flare-ups impact the function of his thoracolumbar spine such that he has to put on a massage pack and warm towel. Range of motion testing revealed forward flexion to 90 degrees or greater, extension to 30 degrees or greater, bilateral lateral flexion to 30 degrees or greater, and bilateral lateral rotation to 30 degrees or greater. The combined range of motion was 240 degrees. He was able to complete repetitive-use testing without additional loss of range of motion. The examiner noted no guarding or muscle spasm. The examiner noted a normal sensory examination without radiculopathy. The examiner found no IVDS. The examiner noted no contributing factors of weakness, fatigability, incoordination, or pain during flare-ups or repeated use over time that could additionally limit the functional ability of the thoracolumbar spine. A January 2018 VA treatment record notes musculoskeletal examination revealed grossly preserved range of motion with no acute deformities. A November 2018 VA treatment record notes chronic low back pain radiating to his legs with some tingling and numbness in feet. In compliance with the Board's prior remand directives, the Veteran underwent a VA examination in March 2019. Range of motion testing revealed forward flexion to 40 degrees, extension to 15 degrees, bilateral lateral flexion to 20 degrees, and bilateral lateral rotation to 25 degrees. Combined range of motion was 145 degrees. The examiner noted range of motion contributes to functional loss. The Veteran was able to perform repetitive-use testing with at least three repetitions without additional loss of function or range of motion. The examiner indicated pain significantly limits functional ability with repeated use over a period of time and during a flare-up but an inability to describe in terms of range of motion. The examiner noted muscle spasm not resulting in abnormal gait or abnormal spinal contour. The examiner found no ankylosis or IVDS on examination; however, the examiner noted regular use of a brace. The Veteran underwent an additional examination in July 2019. During the examination, the Veteran reported constant dull pain that sharpens with certain movements, radicular like pains into legs, and inability to stand or walk for prolonged periods. He indicated flare-ups occur with overuse and noted functional loss or functional impairment such that he is unable to bend down. Range of motion testing revealed forward flexion to 30 degrees, extension to 15 degrees, bilateral lateral flexion to 15 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 15 degrees. He was able to complete repetitive use testing without additional loss of range of motion. The examiner noted pain significantly limits functional ability with repeated use over a period of time and during a flare-up with range of motion consistent with initial range of motion. The examiner found no guarding or muscle spasm, atrophy, ankylosis, or IVDS; however, the examiner noted radiculopathy. The examiner underwent another VA examination in August 2019. He reported mid to lower back pain, tingling, and numbness in both legs. He did not report flare-ups but reported difficulty rising from a laying/sitting position and difficulty bending. Range of motion testing revealed forward flexion to 45 degrees, extension to 10 degrees, bilateral lateral flexion to 20 degrees, and bilateral lateral rotation to 20 degrees. Combined range of motion was 135 degrees. The examiner noted pain, weakness, fatigability, or incoordination do not limit functional ability with repeated use over a period of time or during a flare-up. The examiner found muscle spasm not resulting in abnormal gait or abnormal spinal contour. No ankylosis or IVDS were found on examination. A January 2020 VA treatment record notes low back pain. Subsequent treatment records continue to note low back pain. See, e.g., July 2020 VA treatment record. In compliance with the Board's prior remand directives, a retrospective opinion was obtained in September 2020. The examiner opined that the Veteran's range of motion during flare-ups is expected to be the same range of motion during active range of motion during the examination. During a March 2021 VA examination, the Veteran reported lower back pain and limited range of motion. He reported flare-ups that feel like heat in his back and throbbing. He indicated he cannot bend, lift, drive for long, or sit in certain ways. Range of motion testing revealed forward flexion to 50 degrees, extension to 10 degrees, bilateral lateral flexion to 20 degrees, and bilateral lateral rotation to 20 degrees. Combined range of motion was 140 degrees. The examiner noted the Veteran was unable to perform repetitive-use testing with at least three repetitions due to fear of pain. The examiner found pain and lack of endurance significantly limit functional ability with repeated use over a period of time or during a flare-up with range of motion of forward flexion to 45 degrees but otherwise consistent with initial range of motion. The examiner found muscle spasm resulting in abnormal gait or abnormal spine contour. The examiner noted no radiculopathy, ankylosis, or IVDS but noted regular use of a brace. In compliance with the Board prior remand directives, a clarifying opinion regarding IVDS was obtained. The examiner noted that IVDS is a collection for findings associated with degenerative disc disease such that degenerative disc disease is the cause of IVDS and not a component of it. The examiner noted that both 2019 examinations diagnosed bilateral radiculopathy. The VA definition of IVDS is "a group of signs and symptoms to the nerve root irritation commonly includes back pain and sciatica (pain along the course of the sciatic nerve) in the case of lumbar disc disease...". The examiner indicated this term is little used in clinical medicine and is essentially synonymous with degenerative disc disease and associated nerve compromise due to protrusion of the discs (radiculopathy/stenosis). The examiner noted that, as the Veteran has documented sciatica in 2019, it is at least likely as not that the Veteran would qualify for the diagnosis of IVDS at that time; however, there is no evidence to suggest that the Veteran had incapacitating episodes of IVDS. The examiner reasoned that the 2021 examination did not diagnose radiculopathy or IVDS though there was unexplained muscle weakness, which would be femoral, rather than sciatic. As there is no symptomatology suggestive of IVDS, therefore, if the VA definition of IVDS is simply having degenerative disc disease, then the veteran clearly had IVDS back to the July 2019 examination. As the Veteran was symptomatic and had clinical findings suggestive of radiculopathy, it is as likely as not that the Veteran indeed did have IVDS for both examinations in 2019. As it is unlikely to resolve spontaneously, it is at least likely as not that the veteran still has mild IVDS. Nonetheless, there appear to be no incapacitating episodes evident in the records and certainly none are reported on either examination. The medical records do not suggest incapacitation due to IVDS. After a review of the evidentiary record, the Board finds entitlement to an increased is not warranted at any time during the appeal period. June 21, 2007, to May 21, 2014 From June 21, 2007, to May 21, 2014, the Veteran's lumbar spine degenerative disc disease with spondylosis manifest with forward flexion to 90 degrees and a combined range of motion of the thoracolumbar spine of 240 degrees. The record reflects spasms without report of or demonstration of abnormal gait or abnormal spinal contour or vertebral body fracture with loss of 50 percent or more of height. When considering range of motion as limited by pain, the evidence indicates a combined range of motion to no less than 175 degrees and/or a forward flexion to no less than 60 degrees. These findings are most consistent with his current ten percent rating. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for lumbar spine degenerative disc disease with spondylosis during this period. 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. May 21, 2014, to July 11, 2019 The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent during this period. The Veteran's degenerative disc disease with spondylosis manifest with forward flexion to no less than 40 degrees. Even when considering the functional limitation during a flare-up, the Veteran's symptoms do not more nearly approximate forward flexion to 30 degrees or less or fixation of a spinal segment in neutral position (zero degrees), as required for the next higher rating. 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 disc disease with spondylosis. 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. July 12, 2019, to August 15, 2019 From July 12, 2019, to August 15, 2019, the Veteran lumbar spine degenerative disc disease with spondylosis manifest with forward flexion to no less than 30 degrees, which is most consistent with his current 40 percent rating during this period. The Board finds that the preponderance of the evidence is against a rating in excess of 40 percent as the evidence does not demonstrate symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. 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 disc disease with spondylosis. 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. From August 15, 2019 The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent during this period. The Veteran's degenerative disc disease with spondylosis manifest with forward flexion to no less than 45 degrees with a combined range of motion to no less than 135 degrees. Even when considering the functional limitation during a flare-up, the Veteran's symptoms do not more nearly approximate forward flexion to 30 degrees or less or fixation of a spinal segment in neutral position (zero degrees), as required for the next higher rating. 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 disc disease with spondylosis. 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. In reaching these conclusions, the Board notes consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. However, the evidence of record is against a finding 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 IVDS Based on Incapacitating Episodes. Regarding neurological impairment, the Board notes that the Veteran has already been granted service connection for bilateral lower extremity radiculopathy 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. Accordingly, entitlement to a higher initial rating for service-connected lumbar spine degenerative disc disease with spondylosis is not warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.Aoughsten, 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.