Citation Nr: 22014590
Decision Date: 03/14/22	Archive Date: 03/14/22

DOCKET NO. 17-47 398
DATE: March 14, 2022

ORDER

A rating in excess of 10 percent for a service-connected back disability is denied.

FINDING OF FACT

The Veteran's back disability manifested by pain, is greater than 70 degrees but not greater than 90 degrees of forward flexion, and has a combined range of motion greater than 170 degrees but not greater than 230 degrees. 

CONCLUSION OF LAW

The criteria for a rating in excess of 10 percent for the back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5242.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Navy from April 2013 to June 2015.

In November 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the electronic claims file.

The Board remanded the issue in May 2021 for further development, including scheduling the Veteran for a VA examination. The Veteran was provided a VA examination in September 2021. As such, the Board concludes that the Veteran has been afforded substantial compliance with all previous remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Stegall v. West, 11 Vet. App. 268 (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. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. 

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.  38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 205 (1995). It is essential that the examination on which ratings are based adequately portray the anatomical damage and functional loss with respect to all these elements. 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 or evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. 

The factors involved in evaluating and rating disabilities of the joints include weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination (impaired ability to execute skilled movements smoothly); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); or pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. 

Under 38 C.F.R. § 4.59, with any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitively related to the affected joints. The intent of the rating schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. 

In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that for disabilities evaluated on the basis of limitation of motion, VA was required to apply the provisions of 38 C.F.R. §§ 4.40 and 4.45, pertaining to functional impairment. The Court instructed that in applying these regulations, VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination. Such inquiry was not to be limited to muscles or nerves. These determinations were, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. 

In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court held that consideration of 38 C.F.R. § 4.59 is not limited to cases involving arthritis, thereby providing for the possibility of a rating based on painful motion of a joint, regardless of whether the painful motion stemmed from joint or periarticular pathology. The Court held that pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination and endurance to constitute functional loss. Mitchell v. Shinseki, 24 Vet. App. 32, 33, 43 (2011). Although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. Id.   

The Court explained in Mitchell that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Consequently, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board notes, however, that the Court has held that 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 (1997).

In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court provided a precedential interpretation of the final sentence of 38 C.F.R. § 4.59, which reads: "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." Specifically, the Court held "that the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities." The Court also stated that "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59."

Finally, arthritis shown by x-ray studies is rated based on limitation of motion of the affected joint.  

Prior to February 7, 2021, when limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010.  Diagnostic Code 5010 (traumatic arthritis) directs that arthritis be rated under Diagnostic Code 5003 (degenerative arthritis), which states that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, x-ray evidence of arthritis involving two or more major or minor joint groups will warrant a 10 percent rating, and two or more major or minor joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The 10 percent and 20 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion.  38 C.F.R. § 4.71a, Diagnostic Code 5003, Note 1.

Effective February 7, 2021, under Diagnostic Code 5010, for post-traumatic arthritis, ratings are based on limitation of motion, dislocation, or other specified instability under the affected joint.  If there are two or more joints effected, each rating shall be combined in accordance with § 4.25. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76460 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5010).

Increased rating for back disability.

The Veteran's back disability has been assigned a 10 percent rating under Diagnostic Code 5242.  

Effective February 7, 2021, Diagnostic Code 5242 was recharacterized from "degenerative arthritis of the spine" to "degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome."  See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5242.  However, the rating criteria were not changed.

Diagnostic Code 5242 is rated under the following general rating formula for disease and injuries of the spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242. 

With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent evaluation 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 evaluation 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 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 evaluation is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.

A 50 percent evaluation is assigned of unfavorable ankylosis of the entire thoracolumbar spine.

A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine.

Note (1):  Evaluate any associated objective neurologic abnormalities, including but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.

Note (2):  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.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.

Note (4):  Round each range of motion measurement to the nearest five degrees.

Note (5):  For VA compensation purposes, unfavorable ankylosis is 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.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.

Note (6):  Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.

The Board finds that a rating in excess of 10 percent throughout the period on appeal is not warranted

In April 2017, the Veteran filed a claim for a back disability. 

In an August 2017 VA back examination, the Veteran was diagnosed with lumbar mild spondylosis. No flare-ups were reported. Range of motion was limited by pain. Range of motion measurements included 80 degrees of forward flexion, 30 degrees of extension, 30 degrees of lateral flexion bilaterally, and 30 degrees of rotation bilaterally. Thus, the Veteran's combined range of motion measurements is 230 degrees. No guarding or muscle spasms of the thoracolumbar spine were noted on examination. The Veteran was noted to have no muscle atrophy. There were also no signs of or symptoms of radiculopathy, intervertebral disc syndrome (IVDS) and no other neurologic abnormalities. No ankylosis of the spine was noted as well on examination. The examiner further reported that the Veteran does not have any functional loss or functional impairment from his back disability.

In a June 2018 VA back examination, the Veteran reported pain described as a "pushing" feeling. He rated the pain as a 6 on a scale of 1 to 10, with the potential to exacerbate depending on activity. No flare-ups were reported. Range of motion measurements included 80 degrees of forward flexion, 30 degrees of extension, 30 degrees of lateral flexion bilaterally, and 25 degrees of right lateral rotation and 30 degrees of left lateral rotation. Thus, the Veteran's combined range of motion measurements is 225 degrees. Further, there was no guarding or muscle spasms of the thoracolumbar spine, no muscle atrophy, no signs of or symptoms of radiculopathy, IVDS and no other neurologic abnormalities, no ankylosis of the spine, and no functional loss from his back disability.

In September 2020, the Veteran underwent a VA back examination. The Veteran reported flare-ups of the back which increase in stiffness and pain. Range of motion was limited by pain. Range of motion measurements included 80 degrees of forward flexion, 20 degrees of extension, 30 degrees of lateral flexion bilaterally, and 30 degrees of rotation bilaterally. Thus, the Veteran's combined range of motion measurements is 220 degrees. The examiner noted that the Veteran was able to perform repetitive-use testing. Range of motion measurements, after repetitive-use, included 70 degrees of forward flexion, 15 degrees of extension, 30 degrees of lateral flexion bilaterally, and 30 degrees of rotation bilaterally. Thus, the Veteran's combined range of motion measurements, after repetitive-use, is 205 degrees. No guarding or muscle spasms of the thoracolumbar spine were noted on examination. The Veteran was noted to have no muscle atrophy. There were also no signs of or symptoms of radiculopathy, IVDS and no other neurologic abnormalities. No ankylosis of the spine was noted as well on examination. The examiner further reported that the Veteran does not have any functional loss or functional impairment from his back disability.

In a September 2021 VA back examination, the Veteran reported that his back pain is constant. No flare-ups were reported. Range of motion measurements included 70 degrees of forward flexion, 20 degrees of extension, 20 degrees of lateral flexion bilaterally, and 20 degrees of rotation bilaterally. Thus, the Veteran's combined range of motion measurements is 170 degrees. The Veteran's forward flexion was limited by pain. Additionally, there was no guarding or muscle spasms of the thoracolumbar spine, no muscle atrophy, no signs of or symptoms of radiculopathy, IVDS and no other neurologic abnormalities, and no ankylosis of the spine. The examiner further noted there was involvement of the left sciatic nerve and noted some mild pain and numbness on the left lower extremity. The examiner further reported that the Veteran does have any functional loss from his back disability. The examiner stated that the Veteran would have difficulty with frequently bending and turning his back. 

The Board finds that for the entire period of appeal, the evidence is against the assignment of a disability evaluation in excess of 10 percent for the back disability. For a higher 20 percent rating, the evidence must show that forward flexion of the thoracolumbar spine is limited to 30 to 60 degrees; or a combined range of motion between 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5242.  After a review of all the evidence of record, the Board finds that for the period on appeal, the Veteran's back disability was manifested by range of motion measurements at worst of 70 degrees of forward flexion, 20 degrees of extension, 20 degrees of lateral flexion bilaterally, 20 degrees of rotation bilaterally, and a combined range of motion measurements of 170 degrees. See September 2021 VA examination. Further, during the period on period there was no guarding or muscle spasms of the thoracolumbar spine, no muscle atrophy, no signs of or symptoms of radiculopathy, IVDS and no other neurologic abnormalities, no ankylosis of the spine, and no functional loss from his back disability. 

The Board has considered whether a higher disability rating is warranted based on functional loss due to pain or weakness, fatigability, incoordination, 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 constant low back pain. However, even considering the effects of pain, the Veteran's lumbar spine was never noted to have flexion limited to more than 70 degrees or to be fixed in flexion or extension. 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 or favorable ankylosis of the entire thoracolumbar spine. Accordingly, the 10 percent rating contemplates the functional loss due to pain and less movement. There is no basis for the assignment of additional disability due to pain, weakness, fatigability, weakness or incoordination at any point during the period of the appeal. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). 

Consideration has also been given to the potential application of the other diagnostic codes for disabilities of the spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. The Board notes that a September 2021 rating decision granted a separate 10 percent rating for left lower extremity neuropathy effective May 4, 2017. The Veteran did not appeal the rating or effective date of this condition so the Board will focus on whether any other neurological disabilities are warranted. The record does not support a separate rating for any additional neurological disabilities during any period of the appeal. While the Veteran described numbness in the leg during his hearing, the VA outpatient treatment records and VA examinations do not reflect findings which would support a separate compensable rating of the right lower extremity. While some treatment records note complaints of numbness and radiating pain they reflect this was in relation to the left lower extremity, not the right lower extremity. Specifically, the examiners reviewed the evidence and concluded there was no evidence of radiculopathy and sensory testing on examination was normal. A December 2019 VA physical medicine and rehabilitation record noted complaints of back pain with intermittent left leg numbness and more frequent radiating pain down the leg. The clinician reviewed imaging and conducted several tests including range of motion, tiptoe and heel walking, reflexes, sensory, motor testing, straight leg raise, Patrick testing, and performed testing sitting, supine, side-lying and prone. The clinician concluded there was mechanical low back pain secondary to myofascial pain, noted tenderness to palpation but concluded there were no neurological deficits. While the September 2021 VA examiner noted some involvement of the left lower extremity there was no indication of any radiculopathy or neuropathy of the right lower extremity. The record contains no evidence of bowel or bladder abnormalities that result from the Veteran's service-connected back disability. Accordingly, additional separate evaluations are not warranted for any other neurological conditions. 

A higher rating is also not warranted under Diagnostic Code 5243, for intervertebral disc syndrome (IVDS) based on incapacitating episodes, as the Veteran has not been found to have any incapacitating episodes due to the back disability.

Accordingly, the Board finds that for the entire period on appeal, the criteria for an increased disability rating in excess of 10 percent for the Veteran's back disability are not met. 38 C.F.R. §§ 4.3, 4.7, 4.71a.

 

H. SEESEL

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Dourmashkin

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.