Citation Nr: 22012476 Decision Date: 03/04/22 Archive Date: 03/04/22 DOCKET NO. 17-05 181 DATE: March 4, 2022 ORDER Entitlement to a rating in excess of 10 percent for degenerative disc disease and degenerative arthritis of the lumbar spine from August 23, 2013 to October 6, 2021 is denied. Entitlement to a rating in excess of 40 percent for degenerative disc disease and degenerative arthritis of the lumbar spine from October 6, 2021 is denied. FINDINGS OF FACT 1. From August 23, 2013 to October 6, 2021 the Veteran's degenerative disc disease and degenerative arthritis of the lumbar spine was manifested by forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees and combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees. 2. From October 6, 2021, the Veteran's degenerative disc disease and degenerative arthritis of the lumbar spine was manifested by forward flexion of the thoracolumbar spine 30 degrees or less. 3. At no point has the Veteran's degenerative disc disease and degenerative arthritis of the lumbar spine manifested as unfavorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for degenerative disc disease and degenerative arthritis of the lumbar spine have not been met from August 23, 2013 to October 6, 2021. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71A, Diagnostic Code 5242. 2. The criteria for a rating in excess of 40 percent for degenerative disc disease and degenerative arthritis of the lumbar spine have not been met from October 6, 2021. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71A, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from December 1984 to May 1985, from February 1991 to April 1991, and from November 2004 to September 2011. This appeal comes to the Board of Veterans' Appeals (the Board) on appeal from a January 2016 rating decision that granted entitlement to service connection for degenerative disc disease and degenerative arthritis of the lumbar spine. The Agency of Original Jurisdiction (AOJ) assigned an initial 10 percent rating effective August 23, 2013. The Veteran's claim for an increased rating was previously before the Board in September 2021 when it was remanded for a new Department of Veterans Affairs (VA) examination. She received a new VA examination in October 2021, and in November 2021, the AOJ increased the Veteran's evaluation for degenerative disc disease and degenerative arthritis of the lumbar spine to 40 percent, effective October 6, 2021. Such created a staged rating. As a preliminary matter, the Board notes that the Veteran testified at a video Board hearing in June 2021 with a Veterans Law Judge other than the undersigned. A transcript of this hearing is of record. The Veterans Law Judge who conducted that hearing is no longer available to participate in the adjudication of the Veteran's appeal. In January 2022, the Veteran was given another opportunity to appear at a hearing before a Veterans Law Judge who would adjudicate her appeal. The Veteran responded that she did not wish to participate in another Board hearing. As she has waived her right to testify before another Veterans Law Judge, the Board will proceed with the adjudication of the present appeal. Applicable Diagnostic Codes Disability ratings are determined in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability picture more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102, 4.3. When the appeal arises from an initial assigned rating, the Board will consider whether staged ratings should be assigned to compensate for times when the disability may have been more severe than at other times during the pendency of the claim. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). As noted above, the Veteran is already in receipt of staged ratings in this case. 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. Additionally, 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, 206 (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."). The Veteran's service-connected degenerative disc disease and degenerative arthritis of the lumbar spine is rated under 38 C.F.R. § 4.71A, Diagnostic Code 5242, pursuant to the General Rating Formula for Diseases and Injuries of the Spine. Under this Formula, 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. 38 C.F.R. § 4.71A, General Rating Formula for Diseases and Injuries of the Spine, Note 1. Unfavorable ankylosis is defined as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed 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; or neurologic symptoms due to nerve root stretching." Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. 38 C.F.R. § 4.71A, General Rating Formula for Diseases and Injuries of the Spine, Note 5. Moreover, in Chavis v. McDonough, 34 Vet. App. 1 (2021), the Court held that the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis, i.e., functional loss consistent with that contemplated by ankylosis. 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, 5 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (the Court) held that the final sentence of § 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." 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 the extend of functional impairment of flare-ups from the veterans themselves, when a flare-up is not observable at the time of examination. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). However, the Board notes that the February 7, 2021 revisions to the rating criteria did not substantively change Diagnostic Code 5242 or the General Rating Formula for Diseases and Injuries of the Spine. 1. Entitlement to an Initial Rating in Excess of 10 Percent for Degenerative Disc Disease and Degenerative Arthritis of the Lumbar Spine The Veteran contends that she is entitled to an initial rating of at least 30 percent for her service-connected degenerative disc disease and degenerative arthritis of the lumbar spine. The Veteran's first VA examination was performed in September 2015. At this time, the range of motion of the Veteran's thoracolumbar spine was normal; she exhibited forward flexion to 90 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees. These range of motion measurements do not warrant a rating in excess of 10 percent, as the Veteran's forward flexion was not greater than 30 degrees but not greater than 60 degrees, nor was the combined range of motion of the thoracolumbar spine not greater than 120 degrees. 38 C.F.R. § 4.71A, General Rating Formula for Diseases and Injuries of the Spine. The Veteran's VA treatment records also include a physical therapy consultation from August 2016. The physical therapist noted flexion to 83 degrees, extension to 30 degrees, side-bending (right and left lateral flexion) to 22.5 degrees, and right and left lateral rotation to 22.5 degrees. This results in a combined range of motion of 203 degrees. Thus, these measurements do not warrant a rating in excess of 10 percent. The Veteran's forward flexion was not greater than 30 degrees but not greater than 60 degrees, nor was the combined range of motion of the thoracolumbar spine not greater than 120 degrees. 38 C.F.R. § 4.71A, General Rating Formula for Diseases and Injuries of the Spine. She received another VA examination in December 2016. Her range of motion was measured as follows: forward flexion to 75 degrees, extension to 20 degrees, right and left lateral flexion to 25 degrees, and right and left lateral rotation to 30 degrees. The combined range of motion of her thoracolumbar spine was 205 degrees. Again, these measurements do not warrant a rating in excess of 10 percent, as her forward flexion was not greater than 30 degrees but not greater than 60 degrees, nor was the combined range of motion of the thoracolumbar spine not greater than 120 degrees. 38 C.F.R. § 4.71A, General Rating Formula for Diseases and Injuries of the Spine. The Board has also considered whether the Veteran experienced additional functional loss due to pain, weakness, excess fatigability, and incoordination. During the September 2015 VA examination, the Veteran experienced pain on forward flexion, but this did not cause additional functional loss. The Veteran also exhibited pain on forward flexion, extension, right lateral flexion, and left lateral flexion at the time of the December 2016 VA examination. While the Veteran experienced painful motion, the VA examinations do not show that she had additional functional loss due to this pain, as she did not exhibit functional loss beyond that already contemplated by her 10 percent evaluation. See 38 C.F.R. § 4.71A, General Rating Formula for Diseases and Injuries of the Spine. Furthermore, the September 2015 VA examiner noted that the Veteran did not experience additional functional loss after repeated use over time or during flare-ups due to pain, weakness, fatigability, or incoordination. As such, the Veteran is not entitled to an increased rating based on additional functional loss after repeated use over time or during flare-ups. See 38 C.F.R. §§ 4.40, 4.45; see also Sharp, 29 Vet. App. at 32. However, the Board finds that the December 2016 VA examination does not comply with the requirements of Sharp, 29 Vet. App. at 35-36. Sharp requires VA examiners to elicit information from the Veteran as to the severity, frequency, and duration of flare-ups, as well as precipitating and alleviating factors and the extent of functional impairment. It also requires that VA examiners estimate the additional loss of range of motion during a flare-up and after repetitive use over time based on all procurable information from the record, as well as the Veteran's own statements. If these estimates cannot be provided without resorting to speculation, it must be clear whether this is due to a lack of knowledge among the medical community at large or insufficient knowledge of the specific examiner. During the December 2016 VA examination, the Veteran reported that she experienced flare-ups of the thoracolumbar spine that are precipitated by "doing too much around the house" and prolonged sitting in a vehicle. Her pain was alleviated by laying on a heating pad. She also indicated that she avoids physical activity during flare-ups. However, the examiner did not offer range of motion measurements during flare-ups or after repetitive use over time as required by Sharp, 29 Vet. App. at 35-36. The examiner stated that she was unable to determine whether pain, weakness, fatigability, or incoordination significantly limit functional ability during flare-ups or after repetitive use over time. She wrote that it is not possible to objectively state a specific degree of motion that may be lost due to pain, weakness, fatigability, or incoordination during a flare-up or after repetitive use over time without directly comparing range of motion measurements. This reasoning is insufficient, as she did not indicate whether the need to speculate was due to a lack of knowledge among the medical community at large or insufficient knowledge of the specific examiner. Sharp, 29 Vet. App. at 33. Accordingly, the December 2016 VA examination is inadequate as to whether the Veteran exhibited additional functional loss during flare-ups or after repetitive use over time. While the Board acknowledges the Veteran's lay reports of symptoms and functional loss due to pain, the degree of additional limitation reflected by her statements would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or combined range of motion of the thoracolumbar spine not greater than 120 degrees. 38 C.F.R. § 4.71A, General Rating Formula for Diseases and Injuries of the Spine. Specifically, the Board notes the while the Veteran did report flare-ups at the December 2016 VA examination that were precipitated by doing too much around the house and prolonged sitting in her vehicle and avoiding physical activity during flares, these lay statements do not by themselves establish limitation of motion during flare-ups sufficient to meet the 20 percent rating criteria. Additionally, while the Veteran reported guarding, locking, and spasms at her hearing, and she does have a diagnosis of scoliosis, the medical evidence of record indicates that any guarding or muscle spasm is not severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71A, General Rating Formula for Diseases and Injuries of the Spine. In this regard, the Board notes that the September 2015 VA examination noted that the Veteran did not exhibit guarding or muscle spasms. Further, while guarding was reported during the December 2016 examination, the examiner concluded that it did not result in abnormal gait or abnormal spinal contour. Although the Veteran's VA treatment records indicate that she has focal rotatory levoscoliosis and right eccentric trace anterolisthesis, there is no indication that these conditions have resulted from muscle spasm or guarding. The Board acknowledges that the Veteran testified that she experiences muscle spasms and guarding and that she has been diagnosed with scoliosis. While the Veteran is competent to report symptomatology that she experiences, she has not shown that she has the medical experience or training to relate her muscle spasms and guarding to her diagnosis of scoliosis. This is a medically complex determination that cannot be based on lay observation alone. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, the Board affords more probative value to the competent medical evidence of record finding that the Veteran does not experience muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such that a 30 percent rating is warranted. 38 C.F.R. § 4.71A, General Rating Formula for Diseases and Injuries of the Spine. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, there is no indication that the Veteran had been diagnosed with IVDS prior to October 2021 based on the September 2015 VA examination, the December 2016 VA examination, and her VA treatment records. See 38 C.F.R. § 4.71A, Formula for Rating IVDS Based on Incapacitating Episodes. Moreover, for the purposes of evaluations under this Formula, 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. 38 C.F.R. § 4.71A, Formula for Rating IVDS Based on Incapacitating Episodes, Note 1; see also 69 Fed. Reg. 32, 449 (June 10, 2004). The record does not demonstrate incapacitating episodes as defined by VA regulation during this period. Regarding neurological impairment, the Veteran was in receipt of a 10 percent rating for left lower extremity sciatica associated with her service-connected degenerative disc disease and degenerative arthritis of the lumbar spine from July 17, 2018 to October 6, 2021 and a 20 percent rating thereafter. The lay and medical evidence of record is against a finding that the Veteran had any other neurological abnormality associated with her spine disability from August 23, 2013 to October 6, 2021. Both the September 2015 and December 2016 VA examiners noted that the Veteran did not have any neurological abnormalities related to her degenerative disc disease and degenerative arthritis of the lumbar spine. The Veteran has only reported pain in her left hip and buttock, which is already accounted for in the evaluation currently assigned for left lower extremity sciatica. Accordingly, the Veteran is not entitled to separate evaluations for any other neurological abnormalities associated with her degenerative disc disease and degenerative arthritis of the lumbar spine. For the foregoing reasons, the evidence of record persuasively weighs against the Veteran's claim for an initial rating in excess of 10 percent for service-connected degenerative disc disease and degenerative arthritis. As the evidence of record persuasively weighs against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). The claim must be denied. 2. Entitlement to a Rating in Excess of 40 Percent for Degenerative Disc Disease and Degenerative Arthritis of the Lumbar Spine from October 6, 2021 Following the Board's September 2021 remand, the Veteran received a new VA examination in October 2021. Based on this examination, the AOJ granted an increased evaluation of 40 percent for her degenerative disc disease and degenerative arthritis of the lumbar spine effective October 6, 2021. As noted, a rating in excess of 40 percent under General Rating Formula for Diseases and Injuries of the Spine requires unfavorable ankylosis. In Chavis, the Court held that the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis; i.e., functional loss consistent with that contemplated by ankylosis. 34 Vet. App. at 12. For the reasons to follow, the Board finds that the evidence does not support a rating in excess of 40 percent at any point during the pendency of the appeal. During the Veteran's October 2021 VA examination, the examiner concluded that the Veteran did not exhibit ankylosis of the spine. Furthermore, the Board concludes that the degree of limitation reflected by the Veteran's descriptions of pain does not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. At no point did the Veteran assert that her entire thoracolumbar spine is fixed in flexion or extension, nor did she report any of the symptoms discussed in 38 C.F.R. § 4.71A, General Rating Formula for Diseases and Injuries of the Spine, Note 5, such as 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; or neurologic symptoms due to nerve root stretching. As such, a rating in excess of 40 percent is not warranted based on ankylosis, to include under Chavis. 34 Vet. App. at 12. The Board has also considered whether the Veteran would be entitled to an increased rating under the Formula for Rating IVDS Based on Incapacitating Episodes. While the October 2021 VA examination indicated that the Veteran has IVDS of the thoracolumbar spine, the evidence of record does not show that she has had any episodes of acute signs and symptoms of IVDS that required bed rest prescribed by a physician and treatment by a physician. The Veteran does not contend otherwise. Thus, while the Veteran does have IVDS of the thoracolumbar spine, she is not entitled to a higher rating because she did not have incapacitating episodes with a total duration of at least six weeks during the past twelve months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. As above, consideration has been given to whether a separate rating is warranted for neurological impairment. However, the medical evidence of record shows that the only neurological abnormality associated with the Veteran's service-connected degenerative disc disease and degenerative arthritis of the lumbar spine is left lower extremity sciatica. The Veteran is already service connected for this condition and has been in receipt of a 20 percent rating since October 6, 2021. As there is no evidence of any other neurological abnormalities, the Board concludes that the Veteran is not entitled to separate ratings for any other neurological abnormalities associated with her service-connected degenerative disc disease and degenerative arthritis of the lumbar spine. In sum, the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 40 percent for service-connected degenerative disc disease and degenerative arthritis from October 6, 2021. As the evidence of record persuasively weighs against a rating in excess of 40 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). The claim must be denied. M. COYNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M. Sachs, 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.