Citation Nr: 22011306 Decision Date: 02/28/22 Archive Date: 02/28/22 DOCKET NO. 15-00 667A DATE: February 28, 2022 ORDER Entitlement to a rating in excess of 10 percent for lumbar spine arthritis is denied. FINDING OF FACT Throughout the period on appeal, the Veteran's lumbar spine disability was not manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, 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 in excess of 10 percent for lumbar spine arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5010-5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1981 to May 1996. This matter comes before the Board of Veterans' Appeals (Board), on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this appeal in May 2018 and September 2019 for further development, including scheduling a VA examination. The requested action was substantially completed, and the matter has been properly returned to the Board for appellate review. See Stegall v. West, 11 Vet. App. 258 (1998). Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 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 civil occupations. See 38 U.S.C. § 1115; 38 C.F.R. §§ 3.321(a), 4.1, 4.21. Disability evaluations are based upon the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. See 38 C.F.R. § 4.27. VA has a duty to acknowledge and to consider all regulations that are potentially applicable to issues raised in the record and to explain the reasons and bases for its conclusions. See Schafrath, 1 Vet. App. at 593. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. See 38 C.F.R. §§ 3.321(a), 4.1, 4.21. 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 required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. §§ 4.7, 4.21. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is the primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, regardless of whether they were raised by the Veteran, as well as the entire history of the Veteran's disability. See 38 C.F.R. § 4.1, 4.2; Schafrath,1 Vet. App. at 595. Separate evaluations may be assigned for separate periods of time, or staged, where factual findings show distinct time periods during which the Veteran's disability exhibits symptoms that warrant the application of different ratings. See Fenderson v. West, 12 Vet. App. 119, 126-28 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Additionally, the evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. See 38 C.F.R. § 4.14. Separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 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. See 38 C.F.R. § 4.40. It is essential that the examination upon which disability ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. See id. 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 it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. See id. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. See id. The factors involved in evaluating and rating disabilities of the joints include the following: less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); weakened movement (due to muscle injury, disease, or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination and impaired ability to execute skilled movements smoothly; or pain on movement, swelling, deformity, or atrophy of disuse. See 38 C.F.R. § 4.45. An evaluation based on painful motion of a joint may be appropriate regardless of whether the painful motion stemmed from joint or periarticular pathology. See Burton v. Shinseki, 25 Vet. App. 1, 4-5 (2011). Functional loss caused by pain must be rated at the same level as if that functional loss were caused by some other factor that actually limited motion, such as deformity, atrophy, adhesions, or any of the other factors cited above. See Schafrath, 1 Vet. App. at 592. Consequently, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See id. Where the Veteran is diagnosed with any form of arthritis, painful motion is an important factor of disability, and facial expressions such as wincing exhibited in the presence of pressure on or manipulation of the affected joints, should be carefully noted and related to the affected joints. See 38 C.F.R. § 4.59. Actually painful, unstable, or malaligned joints due to healed injury are at the very least entitled to the minimum compensable rating for the affected joint. The intent of the rating schedule is to recognize painful motion with joint or particular pathology as productive of disability. See id. Crepitation within the joint structures or the soft tissues, such as the tendons or ligaments, should be noted carefully as points of contact which are diseased, and flexion elicits such manifestations. See id. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See id. When adjudicating disabilities evaluated based upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 pertaining to functional impairment must be applied, and examinations must assess whether the disability at issue manifested weakened movement, excess fatigability, or incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995). Such inquiry was not to be limited to muscles or nerves, and, if feasible, these determinations were to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. See id. Consideration of 38 C.F.R. § 4.59 is not limited to cases involving arthritis; thus, a rating based on painful motion of a joint may be appropriate regardless of whether the painful motion stemmed from joint or periarticular pathology. See Burton v. Shinseki, 25 Vet. App. 1, 4-5 (2011). However, 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. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Although pain may cause functional loss, pain itself does not constitute functional loss and is merely one factor to be considered when evaluating functional impairment. See id. However, 38 C.F.R. § 4.40 does not require a separate rating for pain, but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194, 196 (1997). Once the evidence has been assembled in the record, it is the Board's responsibility to evaluate and consider all lay and medical evidence of record, to analyze the credibility and probative value of the evidence, and to provide reasons for rejecting any material evidence favorable to the claimant. See 38 U.S.C. § 7104(a); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In addressing lay evidence and determining its probative value, the Board must assess both its competency, a legal concept determining whether testimony may be heard and considered, and credibility, a factual determination regarding the probative value of the evidence. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall afford the claimant the benefit of the doubt. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Where the evidence is in relative equipoise, the claimant shall prevail; the preponderance of the evidence must weigh against the Veteran's claim in order for it to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990); Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). 1. Entitlement to a rating in excess of 10 percent for lumbar spine arthritis In June 2010, the Veteran filed a claim for an increased rating for his degenerative arthritis, lumbar spine disability. The Veteran contends that he is entitled to a higher rating due to the severity of symptoms related to his lumbar spine disability. During the course of the appeal, in a December 2014 rating decision, the Veteran was granted a separate 10 percent rating for radiculopathy of the left lower extremity under Diagnostic Code 8520. As the Veteran did not appeal the disability rating assigned or the effective date assigned for radiculopathy of the left lower extremity, the Board will not consider whether a higher rating is warranted for this disability. The Veteran is service connected for degenerative arthritis, lumbar spine at 10 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5210-5242. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Here, the use of DC 5010-5242 reflects that the Veteran's spine disability is partially described as traumatic arthritis under DC 5010 and that the rating assigned is based on degenerative disc disease (DDD) under DC 5242. Degenerative arthritis of the spine under DC 5242 is evaluated under the General Rating Formula for the Spine. Prior to February 7, 2021, when new regulations governing ratings for musculoskeletal system and muscle disabilities became effective, DC 5242 may also have been evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes. Although the new regulations make clear that Diagnostic Code 5242 may not be evaluated under the IVDS Formula, if a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Therefore, the Board consider the Veteran's back disability under the IVDS Formula in addition to the General Formula. Prior to the February 7, 2021 regulatory changes, traumatic arthritis was rated under the same diagnostic criteria as degenerative arthritis. 38 C.F.R. § 4.71A, DC 5010 (in effect prior to February 7, 2021). Under the amended regulation provisions, DC 5010, post-traumatic arthritis is rated 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 38 C.F.R. § 4.25. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned 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 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 is 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, reserved lordosis, or abnormal kyphosis. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS 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 rating is warranted for IVDS 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 rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. During the period on appeal, the Veteran has been afforded VA examinations for his thoracolumbar spine in August 2010, October 2010, November 2014, April 2019, and in November 2021. In August 2010, the Veteran reported stiffness, spasms, and pain that occurs 10 times per day lasting less than one hour. Pain is moderate, spontaneous, can be exacerbated by physical activity and alleviated by resting. The Veteran reported flare ups with no functional impairment or limitation of motion of the joint. He reported not receiving any treatment for his condition. The examiner noted that the Veteran walks with normal gait. In October 2010, the examiner noted no evidence of radiating pain on movement, muscle spam, guarding of movement, weakness, atrophy or ankylosis. In August 2010 and October 2010, a review of range of motion testing showed flexion to 90 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. The joint function of the spine is not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. The inspection of the spine revealed normal head position with symmetry in appearance and symmetry of spinal motion with normal curves of the spine. During the VA examination dated in November 2014, the examiner rendered diagnoses of degenerative arthritis of the lumbar spine and left lower extremity radiculopathy. The Veteran reported back spasms, constant pain in the middle lower back, stiffness in the morning and pain that radiates down the left leg with some numbness, intermittent through the day. He denied incapacitating episodes, does not require assistive devices and does not take medications. The Veteran did not report flare ups. On testing, his range of motion showed the Veteran to have forward flexion to 90 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. No additional limitation in ROM. Contributing factors for functional loss after repetitive use were pain on movement and interference with sitting, standing and weight bearing. no lumbar spine ankylosis and no neurological impairments such as bladder or bowel (excluding left lower extremity radiculopathy). A November 2014 X-ray of spine lumbosacral showed dextroscoliosis centered at L3 and degenerative changes of the lumbar spine. At his April 2019 VA examination, the Veteran reported that his lumbar condition has remained. He had radiating sharp pain across the entire back. He denied physical therapy, treatment or medication for the condition. The Veteran did not report flare ups. Functional loss was described as "pain." On testing, his range of motion showed the Veteran to have forward flexion to 80 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. Pain was noted on all ROM but did not result in functional loss. The examiner noted tenderness to paravertebral lumbar spine. There was pain on passive ROM and in non-weight bearing. There was no lumbar spine ankylosis and no neurological impairments such as bladder or bowel (excluding left lower extremity radiculopathy). Pursuant to the September 2019 Board remand, the Veteran was provided another VA examination of his thoracolumbar spine in November 2021. He was diagnosed with degenerative arthritis, DDD, scoliosis of the lumbar spine, and left sciatic nerve radiculopathy. The Veteran reported pain radiating down the left leg to his knee. He can walk about 1/4 mile, can sit for an hour, and walk with no assistive devices with a normal gait. He has not had any treatment for his back. He has no incontinence of bowels or bladder related to his back. He takes no medication for his back. He has not seen a spine surgeon about his back. The Veteran did not report flare ups. Functional loss was described as "pain that comes and goes." A review of range of motion testing showed forward flexion to 80 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. The examiner reported that there was no objective evidence of pain noted on the examination. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of range of motion after three repetitions. The examiner reported the Veteran had no functional loss or functional impairment of the thoracolumbar spine. There was evidence of pain in active motion that does not result in functional loss. The examiner reported that the Veteran did not have ankylosis or IVDS of the thoracolumbar spine. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. No lumbar spine ankylosis and no neurological impairments such as bladder or bowel (excluding left lower extremity radiculopathy) were present. The examiner concluded that the Veteran's back disability impacted his ability to work in that there is "pain with bending over to pick up items from the floor." Regarding the November 2014 X-rays of the lumbar spine, the November 2021 examiner stated that "the remand was reviewed. The C&P exams from 2014 and 2019 were reviewed. There is actually very little difference in the range of motion of the back between the two exams. There was no evidence of muscle spasms today. There was an x-ray in 2014 that showed dextroscoliosis centered at L3. There is only a 10 degrees difference in flexion between the two exams which is most likely attributable to some mild pain or due to measurement error of the goniometer." This substantially complies with the September 2019 remand directive that asks the examiner to address the November 2014 X-ray examination result showing moderate dextroscoliosis. Based on the above, the Board finds that a rating in excess of 10 percent is not warranted. The relevant evidence consistently shows forward flexion of the thoracolumbar spine greater than 60 degrees and a combined range of motion of the thoracolumbar spine greater than 120 degrees. The Veteran has reported pain and stiffness, but there is no indication that these result in additional range of motion or functional loss or to the degree required for a higher evaluation. While the Veteran has reported that he experienced spasms in the November 2014 VA examination, the overall evidence is persuasively against the presence of spasm and guarding. The October 2010 examination found no spasm and no guarding. The November 2014, April 2019 and November 2021 examinations, each indicate that the Veteran does not have muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. There was no spasm, although there was guarding, in the April 2019 VA examination. There was no spasm or guarding in the November 2021 examination. This evidence implies that any spasms or guarding the Veteran had was brief because by the next examination it was not there. Accordingly, the inference is that these brief periods of spasm or guarding did not result in an abnormal gait or abnormal spinal contour. Moreover, the Board gives more credibility and probative weight to the examiners' use of the term "spasm" as it is applied to the diagnostic criteria than it does to the Veteran's report of spasm as applies to the diagnostic criteria. The Board had considered the Veteran's lay statements of record that he experienced increased pain due to his spine disability. The Veteran is clearly competent to report observable symptomatology. However, they statements do not represent the equivalent of (or more nearly approximate the equivalent of) a loss of range of motion on the order of 20 more degrees of flexion and 100 more degrees of combined motion. The Board has considered whether higher disability ratings are warranted based on functional loss due to pain or weakness, interference with sitting, standing and weight bearing or pain on movement of a joint. As discussed above, however, the rating criteria are intended to take into account functional limitations, and therefore the provisions of 38 C.F.R. §§ 4.40 and 4.45 could not provide a basis for a higher evaluation. See 68 Fed. Reg. 51454 -5 (Aug. 27, 2003). In any event, there is no basis for the assignment of additional disability due to pain, weakness, fatigability, weakness, or incoordination. The Board acknowledges that the Veteran's symptoms include less movement than normal, pain and interference with sitting, standing and or weight bearing. However, even considering the effects of pain and the effects of flare-ups, the Veteran's lumbar spine was never noted to have flexion limited to less than 80 degrees. In other words, any additional limitation due to pain and/or flare-ups does not more nearly approximate a finding of forward flexion limited to 60 degrees or less. With respect to the IVDS criteria, the evidence does not indicate or establish that the Veteran had been prescribed bed rest by a physician for any period of acute signs and symptoms. Accordingly, the IVDS Formula is not for application. Thus, the Board finds that the preponderance of the evidence weighs against a disability rating for the Veteran's lumbar spine disability in excess of 10 percent. Consequently, the benefit-of-the-doubt rule does not apply and entitlement to an increased rating as described above, is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). A. Rocktashel Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Romero 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.