Citation Nr: 22014820 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 17-03 744 DATE: March 15, 2022 ORDER Entitlement to a rating greater than 40 percent for degenerative arthritis of the lumbar spine from April 1, 2018, is denied. FINDING OF FACT The Veteran does not have unfavorable ankylosis of the entire thoracolumbar spine. CONCLUSION OF LAW The criteria for a disability rating greater than 40 percent for degenerative arthritis of the lumbar spine have not been met from April 1, 2018. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.71a, Diagnostic Code 5242 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the United States Army from August 1982 to July 1983. This matter comes before the Board of Veterans' Appeals (Board) from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran submitted a Notice of Disagreement (NOD) in July 2015 and a Statement of the Case (SOC) was issued in December 2016. The Veteran perfected an appeal by submitting a timely VA Form 9 in April 2018. The issue was previously before the Board. Most recently in May 2021, the Board remanded the appeal to the RO for additional development. Specifically, the Board directed to obtain an addendum opinion regarding the current severity of the Veteran's degenerative arthritis of the lumbar spine, while discussing the Veteran's flare-ups and comparing his loss of range of motion to ankylosis. In June 2021, the Veteran was afforded a VA examination for his lumbar spine disability and the examiner stated that the Veteran did not report flare-ups as defined by VA and opined that the Veteran's range of motion did not support a "functional equivalent of ankylosis." Thus, the Board finds that the AOJ substantially complied with the remand directives and no further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that in January 2022, the Veteran re-submitted private treatment records originally submitted in December 2021, contending that the RO did not consider it in making its decision as it was not part of the list of evidence in the January 2022 Supplementary Statement of the Case (SSOC). The Board, however, finds that the private treatment records were associated with the Veteran's file prior to the issuing of the January 2022 SSOC and that its omission in the list of evidence does not necessarily mean that it was not considered by the RO. In the same statement, the Veteran states that the RO "want[ed him] to sign a document to withdraw the rest of [his] claim or the rest of [his] appeal because they gave [him] 10 [percent] for [his] low back." The Veteran likely is referring to the Appeals Satisfaction Notice sent to him in January 2022, which is a document sent after a grant of one or more issues on appeal. As the Veteran did not withdraw his claim, the claim is properly before the Board. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. It is not expected that every case will show every criterion for a particular rating. 38 C.F.R. § 4.21. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Entitlement to a rating greater than 40 percent for degenerative arthritis of the lumbar spine from April 1, 2018 The Veteran contends that he is entitled to a rating greater than 40 percent for service-connected degenerative arthritis of the lumbar spine. The Veteran is in receipt of a 40 percent rating from August 9, 2016, under 38 C.F.R. § 4.71a, Diagnostic Code 5242. He was also in receipt of a temporary 100 percent rating from September 18, 2017, to March 31, 2018, under 38 C.F.R. § 4.30. He is also in receipt of separate ratings for left lower extremity radiculopathy, right lower radiculopathy, and lower back scar associated with degenerative arthritis of the lumbar spine. A rating of 40 percent under DC 5242 is warranted when the evidence demonstrates: unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. A rating of 50 percent is warranted when the evidence demonstrates unfavorable ankylosis of the entire thoracolumbar spine, and a rating of 100 percent is warranted when the evidence demonstrates unfavorable ankylosis of the entire spine. Id. Additionally, spine disabilities based intervertebral disc syndrome (IVDS) with incapacitating episodes may be rated under 38 C.F.R. § 4.71a, DC 5243. A rating under DC 5243 is warranted when the evidence demonstrates: incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months (10 percent); or incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months (20 percent). 38 C.F.R. § 4.71a, DC 5243. In June 2021, the Veteran was afforded a VA examination to determine the current severity of his degenerative arthritis of the lumbar spine. The Veteran was diagnosed as having degenerative arthritis, spinal stenosis, bilateral lumbar radiculopathy, and status post lumbar laminectomy. The examiner later explained that the established diagnosis of degenerative arthritis of the lumbar spine "is changed and it is a progression of the previous diagnosis." The Veteran reported that he has "constant" back pain and that he had difficulty with bending over and lifting objects up. Flare-ups were described as "occurring daily" and lasting "all day" which would make the loss of function in the flare-up actually be the constant situation. The Veteran's initial range of motion could not be tested as the Veteran was "having a severe flare-up of back pain and cannot demonstrate [range of motion]." Range of motion during a "flare-up" was 5 degrees for forward flexion, extension, bilateral flexion, and bilateral rotation. Pain, fatigability, weakness, and lack of endurance caused this functional loss. There was no ankylosis of the spine. Although the Veteran had IVDS, the examiner found that the Veteran did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The June 2021 VA examiner also cited a May 2021 MRI that the Veteran also submitted in December 2021 and again in January 2022. The examiner opined that the Veteran's loss of range of motion was "not relevant to ankylosis" and that ankylosis occurs when the vertebrae is "fused together." In December 2021 the Veteran was afforded another VA examination. The Veteran had range of motion in all planes, with 35 degrees of forward flexion, 10 degrees of extension, and 15 degrees in bilateral flexion and rotation. The Veteran did not report flare-ups of the thoracolumbar spine. There was no ankylosis nor IVDS. The examiner cited MRIs from April 2021 and May 2021. The VA examiner opined that the Veteran's decreased range of motion did not support a diagnosis of "functional equivalent of ankylosis." All of the findings were "not consistent with the functional equivalent of ankylosis with ankylosis being defined by VA disability standards as complete loss of motion of a joint." On flare-ups, the examiner opined that the findings were not consistent with flare-ups and that the Veteran denied "any variability in symptoms." Rather, the Veteran stated that his symptoms are constantly severe with no waxing or waning or change. This description by the Veteran did "not support finding of 'flare-up' as defined by the VA in the DBQ which specifically states, 'flare-ups is defined as any temporary or recurring significant increase in signs or symptoms associated with a condition." In January 2022, as discussed above, the Veteran contended that his private medical treatment record was not considered by the RO and resubmitted them. The Veteran also described his symptoms, with pain between 8 and 9 out of 10. The Veteran reiterated that his low back pain is "on going all the time." Private treatment records show that the Veteran complained of back pain in June 2021 and in September 2021, but do not show diagnosis of ankylosis nor complete loss of range of motion. The Veteran did report that the timing of pain was "continuous." Range of motion was "very limited flexion and extension" and caused increased lower back pain. Applying the criteria set forth above to the facts in this case, the Board finds that the evidence weighs against the assignment of a rating greater than 40 percent. There is no evidence of record showing that the Veteran has unfavorable ankylosis of the entire thoracolumbar spine which is the criteria for a 50 percent rating under Diagnostic Code 5242. The December 2021 VA examiner also opined that the Veteran had, albeit very limited, range of motion in all planes and therefore his symptoms were not comparable to ankylosis. The Board finds that the January 2022 VA medical opinion is adequate as it is supported by rationale and correct factual basis. Regarding flare-ups, the Board finds that the Veteran does not have flare-ups as defined by the VA. Flare-ups, as explained by the December 2021 VA examiner, cannot be "constant" as it is, by definition, an acute "change" in symptoms. The Veteran consistently reported that his pain was constant in the June 2021 VA examination, while receiving treatment at a private facility, in the December 2021 VA examination, and again in his January 2022 statement. Moreover, even if the Veteran's symptoms at the time of the examinations were flare-ups, the resulting loss in range of motion were measured during examination and did not amount to a functional equivalent of ankylosis, which is complete loss of range of motion. Thus, the Board finds that the Veteran's symptoms, even during flare-ups, do not meet the criteria for a rating greater than 40 percent. Lastly, although there is contrary evidence as to the diagnosis of IVDS, there is no medical evidence of record showing that the Veteran had incapacitating episodes with a total duration of at least one week during the past 12 months. Thus, the criteria for a separate, compensable rating for IVDS have not been met. For the foregoing reasons, the evidence reflects that the criteria for a rating greater than 40 percent for the Veteran's service-connected degenerative arthritis of the lumbar spine have not been met or more nearly approximated from April 1, 2018. The benefit-of-the-doubt-doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H.S. Yun, 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.