Citation Nr: 22014755
Decision Date: 03/14/22	Archive Date: 03/14/22

DOCKET NO. 18-49 235
DATE: March 14, 2022

ORDER

Entitlement to a disability rating in excess of 40 percent for lumbar arthritis and degenerative disc disease (DDD) (back disability) is denied.

FINDING OF FACT

The Veteran's back disability at no point has been characterized by unfavorable ankylosis of the entire spine, or incapacitating episodes requiring bed rest prescribed by a physician. 

CONCLUSION OF LAW

The criteria for entitlement to a disability rating in excess of 40 percent for lumbar arthritis and degenerative disc disease have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5237-5243.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service with the USMC from February 2004 to February 2008.  This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision of the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ).

In February 2021, the Veteran had a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. At the hearing, the Veteran reported that he was currently working full time, and so a claim for total disability due to individual unemployability (TDIU) is not inferred as part and parcel of the claim for increase. Rice v. Shinseki, 22 Vet. App. 447 (2009).

In August 2021, the Board remanded this matter for a new VA examination to assess the current severity of his back disability.  In October 2021, the Veteran was afforded a VA back conditions examination. The Board finds that the remand directives have been completed. See Stegall v. West, 11 Vet. App. 268 (1998).

VA has met all statutory and regulatory notice and duty-to-assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326.  Neither the Veteran nor his representative has advanced any procedural arguments in relation to VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances...we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran....").

Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. 

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994).

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007).

The Veteran's back disability may be rated under either the General Rating Formula for Diseases and Injuries of the Spine, or the Formula for Rating Intervertebral Disc Syndrome (IVDS), whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. The Veteran's back disability is currently rated under Diagnostic Code (Code) 5243.

Effective February 7, 2021, the schedular criteria for rating the musculoskeletal system were amended. Prior to February 7, 2021, pursuant to 38C.F.R. §4.71a, disabilities evaluated under Diagnostic Code 5242 may be rated either under the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38C.F.R. §4.25. After February 7, 2021, Diagnostic Code 5243 for IVDS is assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; otherwise, Diagnostic Code 5242 is assigned for all other disc diagnoses.

Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 40 percent evaluation is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.

An incapacitating episode is defined as 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 Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. Id. Note (2).

Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent evaluation is assigned when forward flexion of the thoracolumbar spine is 30 degrees or less or when there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is assigned if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation 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.

Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V.

Note 2 states that, 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 3 provides that in exceptional cases, an examiner may state that because of age, body habitus, neurological disease, or other factors not the result of disease or injury of the spine, the range of motion of spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note 2. Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.

Note 4 provides that range of motion measurements are to be rounded to the nearest five degrees.

Note 5 defines unfavorable ankylosis 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.

In February 2016, the Veteran was afforded a VA back condition examination. He was diagnosed with lumbosacral strain, degenerative arthritis of the spine, and intervertebral disc syndrome (IDVS). He reported that that his condition had worsened since the last, April 2013 VA examination. He described his flare-ups as pain and spasm. He had flare-ups a couple of times a month and they lasted a few days. He indicated that that his pain radiated down back of both of his legs. He described a functional loss/impairment as not being able to sit more than 10 to 15 minutes without increased pain. He had pain and a sensation described as pins and needles down the anterior thighs. The Veteran was only able to walk about half mile. He reported that carrying his toddler (bending to change diaper, lifting from crib) caused increased pain and spasm. His initial range of motion (ROM) was 45 degrees for forward flexion, 20 degrees for extension, and 30 degrees for right/left lateral flexion and right/left lateral rotation. His ROM contributed to a functional loss. Pain was noted on the examination and caused a functional loss. He had mild tenderness at L4-5, L5-S1 that was due to arthritis. He also had mild tenderness of lumbar paraspinal muscles, right greater than left, that was due to his lumbosacral strain. He was able to perform repetitive-use testing that caused an additional loss of function or ROM. After 3 repetitions ROM was 30 degrees for forward flexion, 20 degrees for extension, and 30 degrees for right/left lateral flexion and right/left lateral rotation. The examiner noted that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. Pain significantly limited functional ability with repeated use over a period of time. The examiner noted that she was unable to described in terms of ROM. She explained that repeated use, such as helping with house chores, lead to such severe decreased ROM due to pain and spasm, that he could barely get out of bed the next day. Therefore, he tried not to do any chores that involved bending or lifting. Pain significantly limited functional ability with flare-ups. The examiner noted that she was unable to described in terms of ROM. However, she explained that his pain and spasm limited his sitting, standing, walking, bending, or lifting. The Veteran had muscle spasm and localized tenderness that resulted in an abnormal gait or abnormal spinal contour. He did not have guarding. He had a normal muscle strength testing. He did not have muscle atrophy.  He had a normal reflex examination and sensory examination. He had a negative straight leg raising test. He did not have radicular pain or any other signs or symptoms due to radiculopathy. He did not have ankylosis of the spine. He had IVDS of the spine; however, he did not require bed rest prescribed by a physician and treatment by a physician and treatment by a physician in the past 12 months. He did not use an assistive device for his condition. The examiner opined that the Veteran's back condition impacted his ability to work. The Veteran was not able to do any prolonged standing or walking. His back condition was increased by bending and lifting. The examiner noted that any job he had must allow him to sit or stand whenever needed and should not involve bending or lifting.

In October 2017, the Veteran was afforded a VA examination. He was diagnosed with degenerative arthritis of the spine and IVDS. His current symptoms included lower right sided pain. He was not able to sit for extended periods of time. He indicated that getting in and out of vehicle made his pain worse. He reported that it was a challenge to pick up his son. His pain was rated a 7/10 daily. His pain radiated down the lateral portion of his right leg during exacerbations. He treated his condition with chiropractic care, massages, and physical therapy. He took Ibuprofen 1 to 2 times daily. He was also provided muscle relaxers and opioid pain killers for his condition. He described his flare-ups as constant sharp pain in the lower back. There had been times he had to go to the ER because the pain was so bad. He described a functional loss/impairment as not being able to work. He indicated that getting dress could take him 45 minutes some days because of his back pain.  His initial ROM was 45 degrees for forward flexion, 20 degrees for extension, 25 degrees for right lateral flexion, and 30 degrees for left lateral flexion and right/left lateral rotation. Pain was noted on the examination that caused a functional loss. There was evidence of pain on weight bearing. He was able to perform repetitive-use testing that caused an additional loss of function or ROM. After 3 repetitions ROM was 40 degrees for forward flexion, 15 degrees for extension, 20 degrees for right lateral flexion, 25 degrees for left lateral flexion, and 30 degrees for right/left lateral rotation.  Pain caused a functional loss after repetitive use over time. The examiner noted that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time and flare-ups. The examiner noted that he was not able to describe in terms of ROM. He indicated that the examination was not performed after repetitive use over time or a flare-up. He had muscle spasm that resulted in abnormal gait or abnormal spine contour. The examiner noted that he had right lumbar paraspinal muscles with antalgic gait on the examination. He did not have any guarding. He had additional factors contributing to his disability such as interference with sitting and interference with standing. The examiner indicated that pain in his lower back made it difficult to sit or stand for prolonged periods. The examiner noted that the Veteran was visibly distressed while sitting and standing for prolonged periods time during the examination process. He had some active movement against some resistance in his right-side hip flexion. However, he all other normal muscle strength testing. He did not have muscle atrophy. He had hypoactivity in his right knee, and absent reflex in the right ankle. He had a normal sensory examination. He had a negative straight leg raising test. He did not have ankylosis of the spine. He had IVDS of the spine; however, he did not require bed rest prescribed by a physician and treatment by a physician and treatment by a physician in the past 12 months. He did not use an assistive device for his condition. The examiner noted that there was objective evidence of pain when the back was used in non-weight bearing. He noted that passive ROM for the back could not be performed or was not medically appropriate. The examiner opined that the Veteran's back condition impacted his ability to work. The examiner noted that it was difficult for him to lift heavy items. The Veteran had to change positions frequently during the day.

On January 2018 statement, the Veteran wrote that since March 15, 2016 ,his condition had not improved. He indicated that his condition continued to hinder his ability to keep employment. The constant chronic pain caused him to get less than 3 hours of sleep per night and aggravated his PTSD. His pain now caused him to have headaches that limited his ability to do daily tasks.

In February 2021, the Veteran testified that his pain level impacted his occupational and social life beyond what was represented by the diagnostic code. He indicated that due to the limitations that were put on him, a greater than 40 percent rating would be warranted in this case. The Veteran was in constant pain and it was exacerbated easily. He testified that he had to take off work about 2 weeks because of his back condition. He stated that he was probably able to sit no more than 2 minutes at a time. He indicated that he had to walk around the building all day at work. He indicated that his job made accommodation for him. Because of his condition he was not able to ride a bike or do any prolonged walking or standing. He noted that trying to touch his toes was difficult. He rated his pain level at a 9 or 10. He stated that his pain was sometimes so bad that he was not able to do anything. He noted that he had to stretch every morning to loosen up his back. He treated his condition with massage therapy and going to the chiropractor. He indicated that he was not able to bend so he had to kneel over instead. When he had flare-ups, he was told to lay down from his physician. He indicated that once he was incapacitated for about 2 weeks because of his back.

In October 2021, the Veteran was afforded a VA examination. He was diagnosed with DDD of the spine. He reported that his flare-ups occurred every few days lasting 2 to 3 days. His flare-ups were precipitated by lifting activities and random activities such as coughing and twisting. His flare-ups were alleviated by ice, rest, and motrin. He described a functional loss/impairment as not being able to lift things from low areas. Also, he was not able to play with his children and do yardwork. The Veteran was having a flare-up during the evaluation and was unable to perform ROM testing. The Veteran was unable to do ROM without much pain. The Veteran was not able to perform repetitive use testing.  Pain significantly limited his functional ability with repeated use over time and with flare-ups. Estimated ROM was 45 degrees for flexion, and 15 degrees for extension, right and left lateral flexion, and right and left lateral rotation. He had localized tenderness that did not result in abnormal gait or abnormal spinal contour. There was tenderness to palpation and warmth of the lumbar spine. He did not have muscle spasm. He had guarding that resulted in abnormal gait or abnormal spine contour. He had additional factors of disturbance of locomotion, interference with sitting, and interference with standing. He had normal muscle strength testing. He did not have muscle atrophy. He had a normal reflex examination and sensory examination. He did not have radicular pain or any other signs or symptoms due to radiculopathy. He did not have ankylosis of the spine. He did not have any other neurologic abnormalities or findings related to the thoracolumbar spine. He did not have IVDS of the spine. He did not use an assistive device for his condition. The examiner opined that the Veteran's back condition impacted his ability to work. The examiner noted that he had difficulty with lifting and twisting. Those type of motions caused him to have flare-ups.

Based solely on the VA examinations of record, the Veteran's back disability does not more closely approximate a rating greater than 40 percent as he exhibits movement of his lumbar spine and is not ankylosed. However, the Board must also continue to analyze the entire record to determine whether the Veteran's symptom picture warrants a higher rating based on any additional functional loss due to the flare-ups, pain, weakness, fatigability, or incoordination described above. See DeLuca, 8 Vet. App. at 204-07; see also Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017).

Throughout the appeals period the Veteran discussed his complications with his back disability. The February 2016 VA examination documented he described his flare-ups as pain and spasm. He had flare-ups a couple of times a month and they lasted a few days. He described a functional loss/impairment as not being able to sit more than 10 to 15 minutes without increased pain. The Veteran was able to perform initial ROM and repetitive-use testing. During the October 2017 VA examination, he reported that he was not able to sit for extended periods of time. He indicated that getting in and out of vehicle made his pain worse. He reported that it was a challenge to pick up his son. His pain was rated a 7/10 daily. He described his flare-ups as constant sharp pain in the lower back. He described a functional loss/impairment as not being able to work. He indicated that getting dressed could take him 45 minutes some days because of his back pain.  The Veteran was able to perform initial ROM and repetitive-use testing. In February 2021, he testified that his condition limited his walking and standing.  He was able to touch his toes, but it was difficult. He noted that sometimes his pain was so bad he was not able to do anything. He stated that he had to stretch every morning to loosen his back muscles. During the October 2021 examination he reported that his flare-ups occurred every few days, lasting 2 to 3 days. He described a functional loss/impairment as not being able to lift things from low areas. Also, he was not able to play with his children and do yardwork. The Veteran was having a flare-up during the evaluation and was unable to perform ROM testing. The VA examinations and VA treatment records did not reflect that his back was frozen in an unfavorable position or that his thoracolumbar spine is completely unable to move, even during flare-ups or with repeated use over time. In fact, VA examiners found the Veteran did not have any ankylosis, favorable or unfavorable. Further, there was no evidence of record that the Veteran experiences flare-ups or any additional pain, weakness, fatigability, or incoordination that is the functional equivalent of total fixation and immobility of the Veteran's thoracic and lumbar spine in an unfavorable position. Even through the Veteran's reported symptoms and testimony, he did not report that his thoracic and lumbar spine in an unfavorable position. The Board notes that the Veteran was not able to perform ROM of motion testing during the October 2021 examination. The examiner noted that the Veteran was experiencing a flare-up and was unable to move without much pain. However, the examiner noted that pain significantly limited his functional ability with repeated use over time and with flare-ups. Estimated ROM was 45 degrees for flexion, and 15 degrees for extension, right and left lateral flexion, and right and left lateral rotation. Even with the flare-ups and record reflects the Veteran's lumbar spine movement was not fixed in a particular position. 

Additionally, the Veteran is not entitled to a higher rating under the IVDS formula as the evidence does not reflect he had any episodes of acute signs and symptoms that required bed rest prescribed by a physician or treatment by a physician in the past 12 months. Even under the new regulation, the record does not reflect there is disc herniation with compression and/or irritation of the adjacent nerve root; otherwise.

When evaluating disabilities of the spine, any associated objective neurologic abnormalities are to be rated separately under an applicable Diagnostic Code. 38 C.F.R. § 4.71a, General Formula, Note 1. Here, service connection for radiculopathy of the left and right lower extremities have already been granted by the AOJ in November 2017 and October 2021 and therefore are already contemplated by their assigned ratings. Further, he reported that his chronic pain caused him to aggravate his PTSD and caused him to have headaches. The record reflects that the Veteran is already service connected for PTSD and TBI. His symptoms are already compensated.

Finally, the Board has considered the potential applicability of an extraschedular evaluation under 38 C.F.R. § 3.321.  Extraschedular ratings are warranted where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1).  An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Thun, 22 Vet. App. at 115-116.  When those two elements are met, the appeal must be referred to the Director, Compensation and Pension Service, for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required.  Thun, 22 Vet. App. at 116.

The schedular evaluations in this case are adequate.  Ratings in excess of those assigned are provided for certain manifestations of the service-connected disorders but the medical evidence reflects that those manifestations are not present in this case, as is discussed above.  Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disabilities, particularly as the manifestations are viewed through the lens of the DeLuca factors to reflect actual functional impairment.  Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. 

Therefore, the Board finds that a rating in excess of 40 percent for lumbar arthritis and DDD is not warranted. 

 

WILLIAM H. DONNELLY

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Baxter

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.