Citation Nr: 22018803 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 15-44 542 DATE: March 30, 2022 ORDER Entitlement to an evaluation of 40 percent, but no higher, for lumbar spine degenerative disc disease (DDD) is granted. FINDING OF FACT After resolving reasonable doubt in his favor, the Veteran's lumbar spine DDD has manifested in functional impairment equivalent to flexion limited to at most 30 degrees. CONCLUSION OF LAW The criteria for entitlement to an evaluation of 40 percent, but no higher, for lumbar spine DDD have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (Code) 5237 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 2003 to September 2010. He had another period of active duty for training from February 1973 to June 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision by the Department of Veterans Affairs (VA). This case was remanded in July 2019, July 2020, and June 2021 for further development. In June 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. Entitlement to an evaluation in excess of 20 percent for lumbar spine DDD. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In any claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. When evaluating musculoskeletal disabilities based on limitation of motion, there must be consideration of functional loss caused by factors that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.40. Consideration must also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45; see DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) ("functional loss caused by pain must be rated at the same level as if that functional loss were caused by some other factor...that actually limited motion" (emphasis removed)). 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 (musculoskeletal system) or § 4.73 (muscle injury); 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). The provisions of 38 C.F.R. § 4.59 acknowledge that a claimant's disability may cause actual pain or painful motion but still not be severe enough to warrant a compensable rating under the appropriate Code. Pain alone does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system. Pain in, like deformity of or insufficient nerve supply to, a particular joint may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 38-39 (2011). The Veteran's lumbar spine DDD is rated pursuant to Code 5237 and the General Rating Formula for Diseases and Injuries of the Spine (General Formula). Under the General Formula, with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, 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 flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. "Unfavorable ankylosis" is defined, in pertinent part, as "a condition in which...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." See id., Note (5). The Board notes that remand pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), is not necessary because the Veteran must show unfavorable ankylosis to be entitled to an increased rating in excess of 40 percent. The considerations in Correia do not apply to the symptoms that must be shown for unfavorable ankylosis, such as restricted opening of the mouth or a limited line of vision, and thus remand for a new examination would provide little probative value. The record does not reflect, nor has the Veteran stated, that he has any of the requisite symptoms for a finding of unfavorable ankylosis. Accordingly, the Board finds that remand for a new VA examination is unnecessary. As discussed in prior remands, the VA examinations of record are not compliant with Correia. Because the examinations are inadequate, the Board assigns the range of motion measurements, to the extent that they reflect flexion greater than 30 degrees, in each VA examination no probative weight. During a February 2011 VA examination, the Veteran's lumbar spine flexion was limited to 30 degrees. Later, during a July 2014 VA examination, he reported constant pain, with pain worse after prolonged sitting, laying, and walking. His flare-ups were situation-dependent but could last a few days. During his flare-ups, he was unable to do anything and would need to lay down. He reported constant pain again during an October 2019 VA examination, and his pain during flare-ups would "take his breath away." Finally, during a September 2021 VA examination, the examiner opined that passive range of motion could not be obtained because it could cause the Veteran severe pain or risk of further injury. After resolving reasonable doubt in the Veteran's favor, the Board finds that his lumbar spine DDD has manifested in functional impairment equivalent to flexion limited to at most 30 degrees. Notably, the Veteran was noted to have flexion limited to 30 degrees during his first VA examination and his pain has been constant during most, if not all, of the appeal period. His flare-ups appear to have completely restricted his functional capacity to move his back. The Board also finds that the September 2021 VA examiner's opinion that passive range of motion could not be obtained due to potential injury or pain reflects almost complete functional impairment similar to favorable ankylosis. As a result, a 40 percent rating is warranted. The Veteran's bilateral lower extremity radiculopathy is already service connected throughout the appeal period. There is no other evidence of neurologic abnormalities associated with the Veteran's lumbar spine DDD. Thus, additional compensation pursuant to Note (1) of the General Formula is not appropriate. CONTINUED ON NEXT PAGE To warrant a disability rating in excess of 40 percent, the evidence would need to show unfavorable ankylosis of the thoracolumbar spine or the entire spine. There is no evidence in the record that the Veteran suffers from the symptoms associated with unfavorable ankylosis. Accordingly, an increased rating in excess of 40 percent must be denied. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Sandler, 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.