Citation Nr: 22016934
Decision Date: 03/23/22	Archive Date: 03/23/22

DOCKET NO. 09-31 207
DATE: March 23, 2022

ORDER

Entitlement to initial evaluations for degenerative disc disease (DDD) of the lumbar spine ("back condition") in excess of 20 percent for the period from June 17, 2011 through November 8, 2016 and in excess of 40 percent for the period from November 9, 2016 through the present are denied.

FINDINGS OF FACT

1. Regarding the period from June 17, 2011 through November 8, 2016, the Veteran's back condition was not manifested by forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. 

2. From November 9, 2016 through the present, the Veteran's back condition has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine.

CONCLUSION OF LAW

The criteria for a rating in excess of 20 percent for DDD of the lumbar spine for the period from June 17, 2011 through November 8, 2016 and in excess of 40 percent for the period from November 9, 2016 through the present are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5237.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran had active service from June 1998 to September 1998, from February 2003 to July 2003, and from May 2004 to March 2005.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision.

In November 2020, the Board denied, in relevant part, entitlement to increased ratings for these respective periods for the Veteran's service-connected back condition. The Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (Court). In response to an August 2021 Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the Veteran's claim to the Board which in turn remanded the case for further development in October of 2021. The case has now been returned to the Board for further appellate review.  The Board notes that the JMPR only vacated the period of time prior to November 9, 2016 when the back disorder was rated at 20 percent disabling.  However, the RO issued a supplemental statement of the case in December 2021 which also addressed the period since November 9, 2016 during which the back disorder is rated 40 percent disabling.  Accordingly, the Board will address that period as well.  

Entitlement to initial evaluations for a back condition in excess of 20 percent for the period from June 17, 2011 through November 8, 2016 and in excess of 40 percent for the period from November 9, 2016 through the present are denied.

The Veteran contends that higher respective ratings are warranted for his back condition. Disability ratings are determined by the application of VA's Schedule for Rating Disabilities which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002).

The intent of the rating schedule is to recognize painful motion with joint or periarticular 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. 38 C.F.R. § 4.59. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of ROM testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with ROM measurements of the opposite undamaged joint." The spine, unlike the knee at issue in that case, has no opposite 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 extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Veteran is entitled to a staged rating for any part of the rating period on appeal where either or both of his disabilities manifested with greater severity. See O'Connell v. Nicholson, 21 Vet. App. 89, 91-92 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).

Here, the Veteran's disability has been assigned ratings pursuant to Diagnostic Codes 5242-5237 at 20 percent from June 17, 2011 through November 8, 2016 and at 40 percent pursuant from November 8, 2016 through the present. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27.

Pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242 under the General Rating Formula for Diseases and Injuries of the Spine, in relevant part, 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 (General Rating Formula).

Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1.

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.

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. 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 (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.").

Additionally, it is noted that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. See 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. 

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). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327.

After February 7, 2021, Diagnostic Code 5242 was changed to address degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either Diagnostic Code 5003 or 5010).

Diagnostic Code 5003, concerning degenerative arthritis, other than post-traumatic: 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 (Diagnostic Code 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. 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, rate as below:

A 20 percent disability rating will be assigned with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbation;

A 10 percent disability rating will be assigned with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups.

Note (1): The 20 and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion.

Note (2): The 20 and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under diagnostic codes 5013 to 5024, inclusive.

Diagnostic Code 5010 provides post-traumatic arthritis should be 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 §4.25, the combined ratings table.

The regulatory changes to the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a as amended effective February 7, 2021, 85 Fed. Reg. 230 (Nov 30, 2020), do not impact the rating of the Veteran's disability under the General Rating Formula.

Initially, the Board notes that there is no objective evidence of any neurologic abnormalities related to a thoracolumbar spine or cervical spine which are not already service-connected such that a separate rating would be warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note 1. In that regard, the Board observes that the Veteran has already been afforded service connection for left lower extremity radiculopathy associated with DDD of the lumbar spine (a condition also referred to in the medical record as "sciatica"). In addition, the Board notes that the General Rating Formula also provides alternative rating criteria for IVDS. While there is evidence of IVDS reflected here based on the July 2021 private examination, there is no evidence that the Veteran's disabilities have resulted in IVDS requiring prescribed bed rest at any point during the period on appeal. See e.g. July 2021 Private Examination Report. On this basis, the Board need not further discuss these alternative rating criteria.

Accordingly, the sole issue before the Board is whether the Veteran's back condition disability warrants an increased rating under the General Rating Formula. In this case, the most competent, probative evidence of record does not indicate that a higher rating is warranted at any time during either period on appeal.

Addressing the period from June 17, 2011 through November 8, 2016, the Board observes that the Veteran began chiropractic treatment for his low back disability on June 17, 2011. At that time, his range of motion was forward flexion to 60 degrees, extension to 25 degrees and left and right lateral flexion to 25 degrees each. Deep tendon reflexes and sensory and strength testing were normal.

The Veteran was provided with a VA examination in June 2013. The Veteran reported flare-ups that occurred once per week and lasted up to three days. He stated that his range of motion decreased fifty to seventy five percent during flare-ups due to pain, excess fatigability, weakness, and incoordination. Upon examination, forward flexion was to 90 degrees or greater, extension was to 25degrees, and lateral flexion and rotation to the right and left were all to 30 degrees or more. There was no pain on movement. After repetitive range of motion movements, forward flexion was reduced to 85 degrees; all other range of motion measurements remained the same. Functional loss was due to less movement than normal, excess fatigability, stiffness in his back, and pain on movement. Reflex, sensory, and motor strength examinations were normal, with the exception of mild intermittent pain in the Veteran's lower left extremity. The examiner opined that the Veteran had mild radiculopathy in his left lower extremity, affecting the sciatic nerve. He did not have radiculopathy in his right lower extremity. As noted above, the Veteran has been assigned a separate rating for this condition. He had no other neurological abnormalities, including bowel or bladder incontinence. The examiner found that he did not have IVDS at that time.

The Board observes the assertions in the JMPR that the June 2013 VA examination on which the Board previously relied on in denying this claim in part was inadequate because the parties agreed that the examination report reflected that the examiner did not perform the Sharp assessment. Because the Board previously referenced evidence in its October 2021 remand that this examiner may have in fact provided a Sharp assessment of the Veteran's back but failed to record the results, this claim was remanded for an opportunity for that VA provider to review his notes of the June 2013 low back examination and provide an addendum report wherein he estimated the Veteran's additional loss of ROM, if any, due to his reported flare-ups and/or functional loss due to repeat use over time. 

That VA examiner provided a retrospective opinion in December of 2021 in which it was clarified that "estimates of the Veteran's additional loss of ROM due to his reported flare-ups and/or functional loss due to repeat use over time: flexion: an additional loss of 10 degrees (flexion = 80 degrees) extension: an additional loss of 5 degrees (extension = 20 degrees) right lateral flexion: an additional loss of 5 degrees (right lateral flexion = 25 degrees) left lateral flexion: an additional loss of 5 degrees (left lateral flexion = 25 degrees) right lateral rotation: an additional loss of 5 degrees (right lateral rotation = 25 degrees) left lateral rotation: an additional loss of 5 degrees (left lateral rotation = 25 degrees). This is based on the following: review of the medical records and subjective and objective evidence extracted from the June 17, 2013 DBQ Back Compensation and Pension (C&P) history and physical exam."

Based on this evidence, a higher rating in excess of 20 percent for the Veteran's service-connected lumbar spine disability is not warranted from June 17, 2011 through November 8, 2016. The Veteran's lumbar spine forward flexion was not limited to 30 degrees and there was no ankylosis on examination. The Board acknowledges the Veteran's lay reports of symptoms and that there was reportedly functional loss due to pain. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or lessor favorable ankylosis. At most, the Veteran's forward flexion was limited to 60 degrees, and he was able to extend, rotate, and laterally bend his lumbar spine throughout this staged rating period. As such, a higher rating is not warranted.

Further, the Veteran's VA treatment records indicate that the current 20 percent rating is appropriate for this period. The medical treatment records show that the Veteran reported back pain during this period, but do not contain any range-of-motion measurements for the lumbar spine that could indicate that this condition was worse than the current rating at any point. In addition, there is no indication in the record that the Veteran had ankylosis of any portion of the spine at any point. Under the relevant rating criteria, a 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. A higher rating of 40 percent rating is not for assignment unless forward flexion of the spine is limited to 30 degrees or less, and higher ratings of 50 percent and 100 percent are not for assignment unless there is ankylosis of the spine. Thus, the range-of-motion measurements and symptoms of the Veteran's back condition is consistent with a rating of 20 percent and no higher.

The Board acknowledges the Veteran's lay reports of symptoms. The Board also acknowledges that the Veteran reports experiencing some symptoms that could be interpreted as causing some functional loss due to pain and limited motion. Although the Veteran's complaints of chronic pain and loss of motion have been considered, the Board reiterates that the evidence does not reflect additional functional impairment and loss to the degree to warrant higher ratings than those assigned. See DeLuca, 8 Vet. App. 202. Pain alone is not sufficient to warrant a higher rating, as pain may cause functional loss but does not in of itself always constitute functional loss. Mitchell, 25 Vet. App. at 32. In that regard, there is no evidence to support a higher disability rating based on consideration of pain or functional loss, as the Veteran has not exhibited a sufficient degree of limited motion that would more nearly approximate the criteria for a higher rating, even when accounting for the factors resulting in any additional functional loss. Id.  

Similarly, the most competent and probative evidence is against a rating in excess of 40 percent for degenerative disc disease of the lumbar spine. The evidence of record shows that the Veteran did not have unfavorable ankylosis of the entire thoracolumbar spine or limitation of motion what would more clearly approximate ankylosis since November 9, 2016. The evidence of record since November 9, 2016 includes a VA examination provided on November 9, 2016, a back conditions disability benefits questionnaire (DBQ) completed by the Veteran's private chiropractor in May 2017, private medical records showing treatment for the Veteran's service-connected back disability from the [W. I. of C. H.] and [W. and W. O. W.], a July 2021 examination report from a private provider, and a December 2021 retrospective opinion. Overall, these records reflect that the Veteran retained range of motion in most, if not all, planes and has not been diagnosed with ankylosis. Initially addressing the assertions made in the JMPR (and the October 2021 Appellate Brief), the most recent VA examination report also indicates that that examiner clearly described the Veteran's functional loss or flare-ups in terms of range of motion. Sharp, 29 Vet. App. 26, 34; Mitchell, 25 Vet. App. 32, 43-44 (2011).

The Board again acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine.

Consideration has also been given to assigning a rating based on IVDS. However, while the most recent VA examination report indicates that the Veteran has IVDS, the evidence does not reflect that the Veteran had IVDS accompanied by incapacitating episodes as defined by the rating criteria. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. As such, the General Rating Formula continues to be most applicable to this case.

For the foregoing reasons, the persuasive weight of the evidence is also against the Veteran's claim for a rating in excess of 40 percent for degenerative disc disease of the lumbar spine. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

 

 

MICHAEL MARTIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. Smith, 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.