Citation Nr: 22017580 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 19-19 512 DATE: March 25, 2022 ORDER An initial disability rating of 40 percent for arthritis and intervertebral disc syndrome of the lumbar spine from March 21, 2018 to June 17, 2018 is granted. FINDING OF FACT From March 21, 2018 to June 17, 2018, the Veteran's arthritis and intervertebral disc syndrome of the lumbar spine was manifested by pain and functional impairment approximating flexion limited to 30 degrees. CONCLUSION OF LAW From March 21, 2018 to June 17, 2018, the criteria for a rating of 40 percent, but no higher, for arthritis and intervertebral disc syndrome of the lumbar spine are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.27, 4.71a, Diagnostic Code (DC) 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1977 to September 1980 in the United States Army. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office. In October 2021, the Veteran testified before the undersigned during a virtual hearing. A transcript of the hearing is included in the electronic claims file. As a matter of clarification, the Veteran is currently in receipt of a 10 percent rating for his lumbar spine disability from March 21, 2018, and a rating of 40 percent from June 18, 2018. At the October 2021 hearing, he and his representative clarified that he seeks a rating in excess of 10 percent for the period from March 21, 2018 to June 17, 2018 only. The Veteran testified that he does not wish to pursue the matter of a rating in excess of 40 percent. Consistent with this discussion, the Board has characterized the issue on appeal as encompassing the period from March 21, 2018 to June 17, 2018 only. The matter of a rating higher than 40 percent from June 17, 2018 onward is not before the Board at this time. See Hamilton v. Brown, 4 Vet. App. 528 (1993) (if the veteran expressly indicates that adjudication of a particular issue should cease, neither the VA Regional Office nor the Board has authority to proceed on that issue). Finally, the Board notes that in February 2022 the Veteran was erroneously sent a letter advising him that the undersigned was no longer employed by the Board, and offering him the opportunity for an additional hearing. The Veteran did not elect an additional hearing within the time period requested, and the undersigned will proceed with adjudication of the appeal. The electronic filing system contains records that were associated with the file by VA, rather than the Veteran, since the last readjudication of the claim by the VA Regional Office. However, at the October 2021 hearing, the Veteran waived his right to have this evidence reviewed in the first instance by the VA Regional Office. An initial disability rating of 40 percent for arthritis and intervertebral disc syndrome of the lumbar spine from March 21, 2018 to June 17, 2018 is granted. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disability specified is considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Evidence is not in approximate balance or nearly equal, and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent evaluation is warranted when the forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is 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 requires forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Ratings of 50 percent and 100 percent are assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine, or of the entire spine, respectively. Under the Formula for Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, ratings are assigned based on the quantity and duration of incapacitating episodes over a prior 12-month period. For purposes of evaluation under this formula, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician. Under this Formula, a 20 percent evaluation is warranted if incapacitating episodes have a total duration of at least two weeks but less than four weeks during the past 12 months, a 40 percent rating is warranted if the total duration is at least four weeks but less than six weeks, and a 60 percent rating is warranted if the total duration is at least six weeks. Effective February 7, 2021, changes were made to the regulations pertaining to the spine. The revised regulations reflect that DC 5242 now pertains to both degenerative arthritis of the spine and degenerative disc disease other than IVDS, but no change was made to the rating criteria. Diagnostic Code 5243, pertaining to IVDS, was amended to reflect that the diagnostic code is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root, while DC 5242 is to be assigned for all other disc diagnoses. Diagnostic Code 5244 was added to the rating schedule and provides ratings for complete traumatic paralysis. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243, 5244). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, and normal extension, bilateral lateral flexion, and bilateral lateral rotation is zero to 30 degrees. These rating criteria are applied with and 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. "Favorable ankylosis" is defined as fixation of a spinal segment in a neutral position (zero degrees). "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. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine at Note (5). Where a higher rating requires the presence of ankylosis, the functional equivalent of ankylosis may satisfy the rating criteria. Chavis v. McDonough, 34 Vet. App. 1 (2021). When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are separately rated under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code, 5242 at Note (1). In the April 2018 rating decision on appeal, the VA Regional Office granted service connection and assigned a 10 percent rating for the Veteran's lumbar spine disability, effective March 21, 2018. In July 2018, the VA Regional Office granted a 40 percent rating, effective June 18, 2018. As explained above, the matter on appeal is entitlement to a rating in excess of 10 percent from March 21, 2018 to June 17, 2018. The evidence pertinent this portion of the appeal period is limited and consists of an April 2018 VA examination report and the Veteran's hearing testimony. While his treatment records from this time frame were carefully reviewed, they do not contain information sufficient for rating the disability under the applicable rating criteria. On VA examination in April 2018, the Veteran reported having flare-ups consisting of increased pain and back spasms with activity. On examination, flexion was to 70 degrees, extension was to 10 degrees, right lateral flexion was to 30 degrees, left lateral flexion was to 25 degrees, and bilateral lateral rotation was to 30 degrees, with pain in all parameters. There was objective evidence of pain in passive motion as well. The examiner found that the Veteran's range of motion was abnormal, and contributed to functional loss, including an inability to pick up items from the floor. There was pain with weight bearing and non-weight bearing, and objective evidence of localized pain or tenderness. Pain, weakness, fatigability, and incoordination significantly limited the Veteran's functional ability with repeated use and during flare-ups. The lumbar spine disability limited the Veteran's ability to lift, push, squat, and kneel. His reflexes and sensation were normal, and straight leg raising testing was negative. The examiner found no evidence of radiculopathy or other neurological abnormalities associated with the lumbar spine disability. The examiner found no ankylosis of the spine and no intervertebral disc syndrome. At the October 2021 hearing, the Veteran testified that the severity of his lumbar spine disability has been consistent throughout the appeal period. He testified that the VA examination conducted in April 2018 was much less thorough than the July 2018 VA examination upon which his 40 percent rating was based, but that his symptomatology was the same at both examinations. Considering the pertinent evidence in light of the governing legal authority, and resolving any doubt in favor of the Veteran, the Board finds that for the portion of the appeal dated from March 21, 2018 to June 17, 2018, during which the Veteran is currently receiving a 10 percent rating, a higher rating of 40 percent may be assigned. As noted, a 40 percent rating may be assigned with evidence of flexion limited to 30 degrees. On VA examination in April 2018, the Veteran reported flare-ups of back pain and spasms limiting his activities. There was pain in active motion, passive motion, weight bearing status, and non-weight bearing status. His range of motion was abnormal, and contributed to functional loss, including an inability to pick up items off the floor. Pain, weakness, fatigability, and incoordination significantly limited his functional ability with repeated use and during flare-ups. The disability limited his ability to lift, push, squat, and kneel. A review of subsequent VA examination reports further reveals a similar level of functional loss, and as the Veteran competently and credibly explained at the hearing, the severity of his disability has remained consistent throughout the appeal period. As such, and resolving any reasonable doubt in his favor, the Board finds that from March 21, 2018 to June 17, 2018, the severity of the Veteran's lumbar spine disability most closely approximated flexion limited to 30 degrees, thus warranting a 40 percent disability rating during this time period. However, the evidence is persuasively against a rating in excess of 40 percent during this time period. Ratings of 50 percent and 100 percent are assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine, or of the entire spine, respectively. The April 2018 VA examiner explicitly found there is no ankylosis of the spine and the range of motion measurements do not indicate otherwise. The Board also finds insufficient evidence to support a finding that the Veteran's low back pain was so disabling as to actually or effectively limit lumbar spine motion to such an extent as to warrant the assignment of a rating in excess of 40 percent during this time frame. As discussed above, 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. Thus, while the Veteran clearly experienced pain and functional loss, the Board cannot find that it approximated the level of severity as described by a 50 percent or higher rating from March 21, 2018 to June 17, 2018. See Chavis, 34 Vet. App. at 1. As for consideration of a higher rating on the basis of "incapacitating episodes," a 60 percent rating is warranted if the total duration is at least six weeks. The April 2018 VA examiner found no evidence of IVDS and the record does not otherwise indicate that the Veteran experienced incapacitating episodes as defined by VA regulation during the pertinent time period. As such, the criteria for a higher evaluation under Diagnostic Code 5243 have not been met. As for neurological manifestations of the disability, the Veteran is already in receipt of separate disability ratings in this regard. He was notified of the rating decisions awarding service connection for these neurological disabilities, and of his appellate rights. He did not appeal any aspect of those determinations, and the Board finds that the matters of entitlement to a higher rating for these disabilities are not within the scope of the claim on appeal. See Chavis v. McDonough, 34 Vet. App. 1 (2021). No other neurological abnormalities associated with the lumbar spine disability were shown on VA examination in April 2018, and there is no evidence to the contrary pertaining to the period of the appeal from March 21, 2018 to June 17, 2018. As such, the assignment of any additional ratings based on associated neurological abnormalities is not indicated. For all the foregoing reasons, the Board finds that from March 21, 2018 to June 17, 2018, a 40 percent rating, but no higher, is warranted for the Veteran's arthritis and intervertebral disc syndrome of the lumbar spine. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.