Citation Nr: 23057745 Decision Date: 10/24/23 Archive Date: 10/24/23 DOCKET NO. 17-54 800 DATE: October 24, 2023 ORDER Entitlement to a disability evaluation in excess of 20 percent, after February 18, 2019, for lumbar strain with degenerative disc disease (DDD) and intervertebral disc syndrome (IVDS) is denied. FINDING OF FACT The Veteran's service-connected low back disability, which includes degenerative disc disease and intervertebral disc syndrome, is manifested by some occasional restriction of motion, and reports of irregular muscle spasms. The disability has not caused the Veteran to be incapacitated for a period of six weeks or more and the medical evidence does not show favorable or unfavorable ankylosis of the lumbar segment of the spine. CONCLUSION OF LAW The criteria for a disability evaluation in excess of 20 percent for a lower back disability after February 19, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242-5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Army from August 1979 to May 1981, from June 1994 to June 1997, from October 1999 to February 2001, and from December 2003 to April 2005. She also served in the U.S. Army Reserve and served in Southwest Asia. In April 2022, the Board denied an increased evaluation for the Veteran's lumbar spine disorder for the period prior to February 19, 2019, and remanded the issue of an increased rating since that date. The Remand directed the AOJ to obtain VA treatment records, attempt to obtain authorization to obtain private treatment records, and to conduct a VA examination. The Veteran was scheduled for an examination in August 2022, but she failed to report. A further review of the file revealed that there was no evidence showing that the Veteran had been notified of that examination and, as such, the Board concluded that the claim should be remanded once again so that the Veteran would be notified of the examination and the examination could take place. This occurred via the Board Remand of November 2022. The purpose of the remand was to obtain additional medical findings with respect to the back disability. The claim has since been returned to the Board for review. Neither the Veteran nor her representative have raised any concerns with VA's duties to notify or assist with regard to either issue now on appeal. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). The Board would further add that it has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). As indicated above, this issue stems from a claim by the Veteran in which she requested that her lower back disability be assigned a higher disability evaluation. The Veteran has maintained that she suffers from pain, that medications do not relieve said pain, and that she is restricted in the movements she can normally undertake. A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial ratings assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and 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; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other). The Veteran's lower back disability has been rated in accordance with the rating criteria found at 38 C.F.R. Part 4, Diagnostic Codes 5242 and 5243. The amount of the rating has been established as 20 percent, effective February 19, 2019. The question remaining is whether a disability evaluation in excess of 20 percent may be assigned after that date. Diagnostic Codes 5235 through 5243 contemplate, respectively, vertebral fracture or dislocation, sacroiliac injury, and weakness, lumbosacral or cervical strain, spinal stenosis, spondylolisthesis, or segmental instability, ankylosing spondylitis, spinal fusion, degenerative arthritis of the spine, and intervertebral disc syndrome. All diagnostic codes (except where 5243, intervertebral disc syndrome, is evaluated under the formula for rating intervertebral disc syndrome based on incapacitating episodes) are evaluated under the following criteria. Under this criterion, a higher, 50 percent, evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine under Diagnostic Codes 5235 through 5243. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent rating. 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 warrants a 20 percent rating. Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height is given a 10 percent rating. Normal forward flexion of the thoracolumbar segment of the 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. See Note 2, General Rating Formula for Disease and Injuries of the Spine, 38 C.F.R. § 4.71a. Words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. In evaluating the Veteran's musculoskeletal impairments, the Board is cognizant of its responsibilities under the Rating Schedule. 38 C.F.R. § 4.71 et seq. In a precedent opinion, the VA General Counsel has held that disabilities rated under 38 C.F.R. § 4.71a, Diagnostic Code 5293 (now Diagnostic Codes 5237 et. seq.), involved limitation of motion, which warranted consideration based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40 and 4.45. VAOPGCPREC 36-97. Under 38 C.F.R. § 4.40, functional loss or weakness due to pain supported by adequate pathology and evidenced by the visible behavior of the Veteran is deemed a serious disability. In the case of DeLuca v. Brown, 8 Vet. App. 202 (1995), the United States Court of Appeals for Veterans Claims, hereinafter the Court, expounded on the necessary evidence required for a full evaluation of orthopedic disabilities. The Court held that ratings based on limitation of motion do not subsume 38 C.F.R. § 4.40 or 38 C.F.R. § 4.45. It was also held that the provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. However, the Board notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). The criteria further provides that intervertebral disc syndrome (preoperatively or postoperatively) will be rated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. An incapacitating episode is 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. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurological signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. As to the neurological component, under 38 C.F.R. § 4.124a, Diagnostic Code 8520, for rating sciatic neuropathy, a 10 percent rating is warranted when the impairment is mild, 20 percent when moderate, 40 percent when moderately severe, 60 percent when severe with marked atrophy, and 80 percent when there is complete paralysis when the foot dangles and drops, no active movement is possible of muscle below the knee, flexion of the knee is weakened or (very rarely) lost. Ankylosis is the "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Colayong v. West, 12 Vet. App. 524 (1999) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (28th Ed. 1994) at 86.). The claims folder shows that the Veteran underwent a Back Exam in February 2019. Range motion test measurements were found to be: Forward Flexion (0-90) 0 to 60 degrees Extension (0-30) 0 to 20 degrees Right Lateral Flexion (0-30) 0 to 25 degrees Left Lateral Flexion (0-30) 0 to 25 degrees Right Lateral Rotation (0-30) 0 to 20 degrees Left Lateral Rotation (0-30) 0 to 20 degrees The examiner noted that pain was noted on all movement, and that pain and the restrictions caused functional loss. However, tenderness or pain on palpation of the back was not noted. Muscle strength was found to be normal and the Veteran did not have muscle atrophy in the back. The Veteran was diagnosed as having IVDS but it was documented that the IVDS did not require bed rest of any kind. It was further noted that the Veteran had difficulty with prolonged sitting, standing, or walking, and with bending and lifting. As a result of the Board's latest Remand, the Veteran underwent a VA Back Examination in August 2023. Prior to the exam, the Veteran complained about contact ache in the back. She indicated that the pain radiated to the lower extremities and that she experienced the symptoms at least once a week, for an extended period of time. Initial range of motion measurements were found to be outside of normal ranges. Those measurements were found to be: Forward flexion (90 degrees normal) 80 degrees Extension (30 degrees normal) 25 degrees Right lateral flexion (30 degrees normal) 30 degrees Left lateral flexion (30 degrees normal) 30 degrees Right lateral rotation (30 degrees normal) 25 degrees Left lateral rotation (30 degrees normal) 25 degrees Pain was also noted. The examiner found that there was functional loss that was produced by pain, fatigability, and lack of endurance. Additionally, it was reported that the Veteran had localized tenderness, guarding, and muscle spasms of the lower back. However, the muscle spasms did not produce an abnormal gait or spinal contour. Moreover, muscle strength testing was "normal" (5/5). When asked about her IVDS, the Veteran claimed that she had episodes of bed rest having a total duration of at least one week but less than two weeks during the past 12 months. A review of the Veteran's CAPRI records show that there has been complaints of pain, back spasms, and some restriction in the range of motion of the back. It was noted that the Veteran had complaints of pain, and a decreased ability to walk or stand for extended periods of time decreased motion and stiffness. Muscle strength was normal, there was no atrophy of muscle mass and no ankylosis. Because unfavorable ankylosis of the lumbar segment of the spine has not been diagnosed, Diagnostic Code 5240 is not for application. 38 C.F.R. Part 4. Since the Veteran has not been diagnosed as having favorable ankylosis of the spine, or fusion of the lumbar segments, then Diagnostic Code 5241 is also not for application. Id. With respect to Diagnostic Code 5235, it is not for application because the Veteran did not fracture any of his vertebras and the criteria used for evaluating intervertebral disc syndrome may not be used because the Veteran does not suffer from this condition. Id. Yet, the question remains - does the Veteran meet the criteria for a higher rating pursuant to the rating criteria for limitation of motion? The VA examination reports are definite in the conclusions that the Veteran is not suffering from sciatic neuropathy as a result of his lower back disability. Although the Veteran has reported pain, the medical evidence does not establish atrophy of the involved nerves or even recurrent and consistent muscle spasms of the back. Moreover, the Veteran has not experienced paralysis of the nerves and the Veteran has been capable of moving her lower extremities and any restrictions to the extremities have been separately rated. Additionally, there is nothing in the available medical records, and the statements provided by the Veteran, that suggests that she has suffered from recurrent incapacitating episodes or that she has been prescribed bed rest. It was not until most recently that she has used bed rest and it is unclear from the lack of evidence as to whether such rest was a one-time incident or whether she will need to treat her IVDS with bed rest from now and into the future. With respect to the Veteran's restriction of motion, the highest evaluation available under 38 C.F.R. Part 4, Diagnostic Code 5237 is 100 percent. However, a 100 percent rating requires unfavorable ankylosis, which the Veteran does not have. The next lowest rating is a 40 percent rating. However, during the time in question the Veteran's forward flexion is not restricted to 30 degrees or less and she does not have favorable ankylosis of the spine. With respect to the examinations of record, the most recent examination indicates that the Veteran's forward flexion was more restricted than it was when measured originally. However, her extension, lateral flexion, and lateral rotation were measured as being more or less the same during the entire period. While the medical evidence is somewhat lacking in evidence concerning how restricted the Veteran's back is, the Veteran does experience pain and does have limitation of movement that, generously, more approximates, over the long course of this appeal, the rating criteria needed for a 20 percent rating but no higher. That is, although the entire record is not without a measure of ambiguity, the Board concludes that the totality of the evidence (over the course of the appeal) in the file appears to be at least in approximate balance, and a 20 percent rating, but no higher, should be assigned to the Veteran's disability. The Board has also considered whether factors including functional impairment and pain as addressed under 38 C.F.R. §§ 4.10, 4.40 and 4.45 would warrant a higher rating. See Spurgeon v. Brown, 10 Vet. App. 194 (1997); and DeLuca v. Brown, 8 Vet. App. 202 (1995). It is not disputed that the Veteran has occasional limitation of motion of the lumbar spine, and that there is pain on motion. Limited motion of the lumbar segment of the spine has not resulted in constant, permanent levels of functional loss. Here there is a lack of objective medical evidence showing that the Veteran suffers any additional consistently measurable functional loss and/or limitation of motion even during flare-ups or with use. Additionally, the Board has considered whether it is appropriate to assigned "staged ratings," in accordance with Fenderson, supra. However, the Board finds that the medical evidence demonstrates consistently and throughout the appeal period that the Veteran meets the criteria for a 20 percent rating, but no higher, from February 19, 2019, to the present. Therefore, the assignment of staged evaluations in this case is not necessary. In conclusion, the symptoms and evidence that would entitle the Veteran to a higher disability rating for a lower back disability after February 19, 2019, are not currently present. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to her through her senses, she is not competent to identify a specific level of her according to the appropriate diagnostic codes. Accordingly, and for the foregoing reasons, the Board finds that the evidence weighs against a finding that the Veteran is entitled to a disability evaluation in excess of 20 percent. As such, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. M. Mills Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Patrick J. Costello 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.