Citation Nr: 1736583	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  14-14 227	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUE

Entitlement to a rating in excess of 10 percent from September 18, 2009 to May 20, 2014, a rating in excess of 20 percent from May 20, 2014 to December 15, 2016, and a rating in excess of 40 percent therefrom for degenerative arthritis of the lumbar spine.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran




ATTORNEY FOR THE BOARD

T. Grzeczkowicz, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1966 to August 1970.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the New York, New York, Department of Veterans Affairs (VA) Regional Office (RO).  

In September 2016, the Board remanded the Veteran's claim for a rating in excess of 10 percent for degenerative arthritis of the lumbar spine for additional development.  

Subsequently, in a March 2017 decision the RO granted a rating of 20 percent for degenerative arthritis of the lumbar spine effective May 20, 2014, the date the Veteran's private treatment records show an increase in severity, and a rating of 40 percent for degenerative arthritis of the lumbar spine effective December 15, 2016, the date of the Veteran's VA examination.  The Veteran was advised of the grant of the increased rating but he has not expressed satisfaction with it or withdrawn his appeal.  As such, the appeal for a higher disability rating continues.  See AB v. Brown, 6 Vet. App. 35 (1993). 

The Veteran testified at a June 2016 videoconference hearing before the undersigned.  A transcript of those proceedings is of record. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).



FINDINGS OF FACT

1.  From September 18, 2009 to May 20, 2014, the Veteran's low back disability was manifested by pain and limited range of motion of the thoracolumbar spine with forward flexion to 80 degrees, extension to 20 degrees, without objective evidence of muscle spasm, and guarding; abnormal mobility, abnormal gait, reversed lordosis, scoliosis, abnormal kyphosis, incapacitating episodes more than two weeks in the past 12 months, or ankylosis of the entire thoracolumbar spine.

2.  From May 20, 2014 to December 15, 2016, the Veteran's degenerative arthritis of the lumbar spine was manifested by forward flexion to 45 degrees and extension to 10 degrees, without objective evidence of muscle spasm, and guarding; abnormal mobility, abnormal gait, reversed lordosis, scoliosis, abnormal kyphosis, incapacitating episodes more than two weeks in the past 12 months, or ankylosis of the entire thoracolumbar spine.

3.  Throughout the entire appeal period, the Veteran's degenerative arthritis of the lumbar spine does not result in unfavorable ankylosis of the thoracolumbar spine or entire spine; intervertebral disc syndrome resulting in incapacitating episodes; or associated objective neurologic abnormalities.


CONCLUSIONS OF LAW

1.  From September 18, 2009 to May 20, 2014, the criteria for the assignment of a disability evaluation in excess of 10 percent for the service-connected degenerative arthritis of the lumbar spine have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5235-5243 (2016).

2.  From May 20, 2014 to December 15, 2016, the criteria for the assignment of a disability evaluation in excess of 20 percent for the service-connected degenerative arthritis of the lumbar spine have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5235-5243 (2016).

3.  From December 15, 2016, the criteria for the assignment of a disability evaluation in excess of 40 percent for the service-connected degenerative arthritis of the lumbar spine have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5235-5243 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist 

The Veteran was provided with 38 U.S.C.A. § 5103(a)-compliant notices at several points in the appeal, most recently in September 2016.  The record also shows that VA has fulfilled its duty to assist the Veteran, including with respect to medical examination of the disability at issue.  The Veteran does not contend otherwise. 

The Board consequently finds that the duties to notify and assist the Veteran have been met and that no further action is required prior to rendering a decision on the merits of the claim.  

II.  Law and Regulations

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155.  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21. 

Where there is a question as to which of two evaluations (ratings) shall be applied, the higher rating 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.  When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7. 

In deciding this appeal, VA has specifically considered whether separate ratings for different periods of time are warranted, assigning different ratings for different periods of the Veteran's appeal.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). 

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology or evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.

The factors involved in evaluating, and rating disabilities of the joints include weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination (impaired ability to execute skilled movements smoothly); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); or pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. 

In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that for disabilities evaluated on the basis of limitation of motion, VA was required to apply the provisions of 38 C.F.R. §§ 4.40, and 4.45, pertaining to functional impairment.  The Court instructed that, in applying these regulations, VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination.  Such inquiry was not to be limited to muscles or nerves.  These determinations were, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. 

The Court held that pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination and endurance to constitute functional loss.  Mitchell v. Shinseki, 24 Vet. App. 32, 33, 43 (2011).  Although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment.  Id.   

In Mitchell, the Court explained that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45).  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.  Therefore, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints.  Muscle spasm will greatly assist the identification.  Sciatic neuritis is not uncommonly caused by arthritis of the spine.  The intent of the schedule is to recognize painful motion with joint or particular 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.  Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased.  Flexion elicits such manifestations.  The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.  38 C.F.R. § 4.59.

Diagnostic Code 5235, Vertebral fracture or dislocation; Diagnostic Code 5236, Sacroiliac injury and weakness; Diagnostic Code 5237, Lumbosacral or cervical strain; Diagnostic Code 5238, Spinal stenosis; Diagnostic Code 5239, Spondylolisthesis or segmental instability; Diagnostic Code 5240, Ankylosing spondylitis; Diagnostic Code 5241, Spinal fusion; and Diagnostic Code 5242, Degenerative arthritis of the spine; are rated under the following new general rating formula for diseases and injuries of the spine.  38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242. 

With or 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, a 10 percent evaluation will be assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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.  38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242.

A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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.  38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242.

A 40 percent rating will be assigned for 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.  A 50 percent evaluation will be assigned of unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent rating will be assigned for unfavorable ankylosis of the entire spine.  Id.
Note (1): Evaluate any associated objective neurologic abnormalities, including but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. 

Note (2): For VA compensation purposes, normal forward flexion of the thoracolumbar 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 ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.  Id.

III.  Factual Background

In an October 2011 North American Partners in Pain Management, LLP Initial Consultation, the Veteran reported back pain as a 4 out of 10 most of the time and a 10 out of 10 at the worst.  The Veteran noted the use of Percocet and Naprosyn medications for pain relief.  

In a November 2011 State of New York, Department of Correctional Services, Ambulatory Health Record Progress Note, the Veteran reported experiencing low back pain for over forty years. 

At a March 2012 VA Back (Thoracolumbar Spine) Examination, the Veteran reported functional loss or functional impairment due to pain.  On physical examination, range of motion was forward flexion to eighty degrees, extension to twenty degrees, right lateral flexion to twenty degrees, left lateral flexion to twenty-five degrees, right lateral rotation to twenty degrees and left lateral rotation twenty degrees.  There was additional loss of motion with repetitive testing.  The examiner indicated that the Veteran experienced muscle spasm and guarding that did not result in abnormal gait or abnormal spine contour.  The examiner did not report any radiculopathy, ankyloses, kyphosis, or lordosis.  

At an August 2013 VA Back (Thoracolumbar Spine) Examination, the Veteran was diagnosed with mild cervical strain.  The Veteran reported the use of a cane as an assistive device.  On physical examination, range of motion was forward flexion to ninety degrees, extension to thirty degrees, right lateral flexion to thirty degrees, left lateral flexion to thirty degrees, right lateral rotation to thirty degrees and left lateral rotation thirty degrees.  There was no additional loss of motion with repetitive testing.  The examiner indicated that the Veteran did not experienced muscle spasm and guarding that resulted in abnormal gait or abnormal spine contour.  The examiner did not report any radiculopathy, ankyloses, kyphosis, or lordosis.  

In a September 2013 Statement in Support of Claim, the Veteran reported that his back disability was getting worse despite injections into his spine and walking as much as possible for exercise.  The Veteran noted that he experienced back spasms every day. 

In an April 2014 VA Form 9, the Veteran reported that his low back was getting worse.  The Veteran noted that he received trigger point injections and took painkillers constantly.  

On a May 2014 Private Treatment Record, Dr. S.M. reported on physical examination the Veteran's range of motion was forward flexion to forty-five degrees, extension to ten degrees, right lateral flexion to ten degrees, left lateral flexion to ten degrees, right lateral rotation to fifteen degrees and left lateral rotation fifteen degrees.  The combined range of motion was 105 degrees. 

In a July 2014 Statement, the Veteran reported that his low back disability increased in severity.  The Veteran noted that he received trigger point injections, epidural shots, along with taking strong painkillers. 

At a June 2016 Board videoconference hearing, the Veteran reported taking Percocet, Hydrocodone, and Ibuprofen, along with TENS therapy, trigger point injections, and epidurals to treat his back pain.  The Veteran indicated that he was in constant pain as a result of his back pain.  

At a December 2016 VA orthopedic examination, the Veteran reported functional loss or functional impairment due to pain.  The Veteran indicated that he needed help to put on pants and shoes, and has difficulty driving, walking, taking stairs, and lifting.  

On physical examination, range of motion was forward flexion to thirty degrees, extension to five degrees, right lateral flexion to fifteen degrees, left lateral flexion to twenty degrees, right lateral rotation to ten degrees and left lateral rotation fifteen degrees.  There was additional loss of motion with repetitive testing, range of motion was forward flexion to twenty-five degrees, extension was noted as unable, right lateral flexion to eight degrees, left lateral flexion to twelve degrees, right lateral rotation to eight degrees and left lateral rotation fifteen degrees.  The examiner noted that there was no additional range of motion loss due to pain, loss due to fatigue, weakness, lack of endurance or incoordination following repetitive use.  The Veteran reported pain that caused functional loss, pain on weight bearing and localized tenderness or pain on palpitation on the joint or associated soft tissue of the thoracolumbar spine.  Pain limiting functional ability with repeated use over time was noted.  The examiner indicated that the Veteran did not experience muscle spasm and guarding resulting in abnormal gait or abnormal spine contour.  There was tenderness that caused an abnormal spine contour.  The examiner did not report any radiculopathy, ankyloses, kyphosis, or lordosis.  




IV.  Analysis 

By way of background, the Veteran filed for service connection for low back injury in August 1970.  His claim was granted in a November 1970 rating decision and a 10 percent rating was assigned from August 25, 1970.  The Veteran filed a claim for increase in September 18, 2009.  In a July 2011 rating decision, the RO denied the claim for increase.  After being provided with notice of the July 2011 rating decision and his appellate rights, the Veteran submitted a notice of disagreement with the decision in August 2011.  In a March 2017 rating decision, the RO granted a rating of 20 percent for degenerative arthritis of the lumbar spine effective May 20, 2014, the date the Veteran's private treatment records show an increase in severity, and a rating of 40 percent for degenerative arthritis of the lumbar spine effective December 15, 2016, the date of the Veteran's VA examination.  

From September 18, 2009 to May 20, 2014 

The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the assignment of a disability evaluation in excess of 10 percent for the service-connected degenerative arthritis of the lumbar spine from September 18, 2009 to May 20, 2014.  The Veteran reported pain and limitations on walking, sitting and standing due to pain, all of which he is competent to report.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  There is no evidence that the Veteran's statements are not credible, and therefore they are entitled to probative weight. 

Turning to the record, the Veteran was provided with a VA examination in March 2012.  The weight of the competent and credible evidence establishes that the service-connected degenerative arthritis of the lumbar spine is manifested by pain; functional loss manifested by less movement than normal, incoordination, and pain on movement.  Gait and posture were normal at the March 2012 VA examination.  
There are objective findings of forward flexion limited to 80 degrees with no objective evidence of pain on motion.  Extension was limited to 20 degrees.  The VA examiner noted that pain was noted on exam and that the pain resulted in or caused functional loss.  The VA examiner further noted that less movement than normal and interference with sitting and standing were as a result of functional loss.  The VA examiner indicated there was guarding or muscle spasms but it did not result in abnormal gait or abnormal spinal contour. 

The Veteran was provided with another VA examination in August 2013.  The Veteran reported the use of a cane as an assistive device.  On physical examination, range of motion was forward flexion to ninety degrees, extension to thirty degrees, right lateral flexion to thirty degrees, left lateral flexion to thirty degrees, right lateral rotation to thirty degrees and left lateral rotation thirty degrees.  There was no additional loss of motion with repetitive testing.  The examiner indicated that the Veteran did not experienced muscle spasm and guarding that resulted in abnormal gait or abnormal spine contour.  The examiner did not report any radiculopathy, ankyloses, kyphosis, or lordosis.  

Following a review of the VA examinations discussed above, as well as VA and private treatment records, the Board finds that a rating in excess of 10 percent is not warranted at any point from September 18, 2009 to May 20, 2014. 

In this regard, there is no evidence of functional limitation of motion of the lumbar spine sufficient to warrant at least a 20 percent evaluation during this period, nor is there evidence of guarding and/or muscle spasm resulting in abnormal gait or abnormal spine contour, or ankylosis of the lumbar spine.  The weight of the competent and credible evidence shows that the Veteran had forward flexion of the thoracolumbar spine beyond 60 degrees.  There is no objective evidence of localized tenderness and pain to the thoracolumbar spine on palpation.  There is objective evidence of muscle spasm or guarding but not severe enough to cause abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  There is no evidence of favorable or unfavorable ankylosis of the entire thoracolumbar spine. 

The rating criteria take into account functional limitations; therefore, the provisions of 38 C.F.R. §§ 4.40, 4.45, could not provide a basis for a higher evaluation.  68 Fed. Reg. 51454-5 (Aug. 27, 2003).  In any event, as discussed below, additional functional limitation warranting a higher rating has not been shown.

There is no basis for the assignment of additional disability due to pain, weakness, fatigability, weakness or incoordination.  See 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206 -07 (1995).  The VA examination reports show that the range of motion of the thoracolumbar spine was not additionally limited by pain, weakness, impaired endurance, incoordination, or instability.  Muscle strength was normal and there was no atrophy.  The Board finds the functional loss manifested by less movement than normal and pain on movement is contemplated in the 10 percent rating.  Based on the objective medical evidence of record, there is no basis for the assignment of additional disability due to pain, weakness, fatigability, or incoordination, and the Board finds that the assignment of additional disability pursuant to 38 C.F.R. §§ 4.40 and 4.45 is not warranted. 

The Board finds that the service-connected thoracolumbar spine disability more nearly approximates the criteria for a 10 percent rating, from September 18, 2009 to May 20, 2014, and has not more nearly approximated the criteria for a higher disability rating of 20 percent.  Thus, the preponderance of the evidence is against the assignment of a disability evaluation in excess of 10 percent for the service-connected lumbar spine disability from September 18, 2009 to May 20, 2014 under the rating criteria for spine disabilities. 

A higher rating is not warranted under Diagnostic Code 5242 from September 18, 2009 to May 20, 2014.  The evidence does not establish that the service-connected thoracolumbar spine disability was manifested by incapacitating episodes having a total duration of at least two weeks during the past 12 months.  There is no evidence of physician prescribed bed rest or incapacitation.  Thus, the Board finds that a disability evaluation in excess of 10 percent for the thoracolumbar spine disability is not warranted under Diagnostic Code 5242.  38 C.F.R. § 4.71a, Diagnostic Code 5242.

From May 20, 2014 to December 15, 2016 

The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the assignment of a disability evaluation in excess of 20 percent for the service-connected degenerative arthritis of the lumbar spine from May 20, 2014 to December 15, 2016.  The Veteran reported pain and limitations on walking, sitting and standing due to pain, all of which he is competent to report.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  There is no evidence that the Veteran's statements are not credible, and therefore they are entitled to probative weight. 

Turning to the record, the Veteran provided a May 2014 private treatment record from Dr. S.M..  The medical report from Dr. S.M. included objective findings of forward flexion limited to 45 degrees.  Extension was limited to 10 degrees.  Right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 15 degrees and left lateral rotation 15 degrees.  The combined range of motion was 105 degrees. 

The weight of the competent and credible evidence shows that the Veteran had forward flexion of the thoracolumbar spine limited to 45 degrees.  A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but no greater than 60 degrees.  See 38 C.F.R. § 4.71a , Code 5242.  The evidence does not demonstrate that the symptoms are productive of forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine as to warrant a 40 percent rating during this period, even after consideration of pain, weakness and other symptoms.  Further, there is no evidence (or allegation) of incapacitating episodes (bed rest prescribed by a physician).  

Consequently, the schedular criteria for a rating in excess of 20 percent under Diagnostic Code 5242 is not met for the period from May 20, 2014 to December 15, 2016.  

From December 15, 2016 

The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the assignment of a disability evaluation in excess of 40 percent for the service-connected degenerative arthritis of the lumbar spine from December 15, 2016.  The Veteran reported pain and limitations on walking, sitting and standing due to pain, needing help to put on pants and shoes, and having difficulty driving, walking, taking stairs, and lifting all of which he is competent to report.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  There is no evidence that the Veteran's statements are not credible, and therefore they are entitled to probative weight. 

Turning to the evidence of record, the Veteran was provided with a VA examination in December 2016.  The weight of the competent and credible evidence establishes that the service-connected degenerative arthritis of the lumbar spine is manifested by pain; functional loss manifested by less movement than normal, incoordination, and pain on movement.  The Veteran indicated that he needed help to put on pants and shoes, and has difficulty driving, walking, taking stairs, and lifting.  Gait and posture was normal at the December 2016 VA examination.  

There are objective findings of forward flexion limited to 30 degrees.  Extension was limited to 5 degrees.  The VA examiner noted that pain was noted on exam and that the pain resulted in or caused functional loss.  The VA examiner further noted that pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time.  The VA examiner indicated there was guarding or muscle spasms but it did not result in abnormal gait or abnormal spinal contour. 

Following a review of the relevant evidence of record, the Board concludes that the Veteran is not entitled to a rating in excess of 40 percent for degenerative arthritis of the lumbar spine for the entire appeal period.  In order to assign a 50 percent rating, there needs to be evidence of unfavorable ankylosis of the entire thoracolumbar spine.  However, it was specifically noted at his December 2016 VA examination that he did not have ankylosis.  In addition, the aforementioned VA examinations revealed range of motion of all axes, albeit limited.  The Board therefore finds that a rating in excess of 40 percent is not warranted from December 15, 2016.

The Board also finds that the Veteran does not warrant a higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  In order to warrant a 60 percent disability rating for intervertebral disc syndrome there needs to be evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. The Board finds that there is no evidence that the Veteran has incapacitating episodes as described in Note (1) to Diagnostic Code 5243, i.e., 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.  It was stated at the December 2016 VA examination that he did not have any incapacitating episodes.  Moreover, there is no evidence that he has incapacitating episodes that have required bed rest and treatment by a physician.  Thus, the Board finds that the Veteran does not warrant an increased rating based upon such Formula.

With respect to consideration of neurologic abnormalities pursuant to Note (1) of the General Rating Formula, the Board finds that there are no associated objective neurologic abnormalities.  The Veteran has been assigned separate compensable ratings for radiculopathy of the right lower extremity associated with degenerative arthritis of the lumbar spine and radiculopathy of the left lower extremity associated with degenerative arthritis of the lumbar spine under 38 C.F.R. § 4.124a, Diagnostic Code 8520 and consideration of the same neurological manifestations under Code 5242 would amount to pyramiding.  38 C.F.R. § 4.14 (the evaluation of the same disability under various diagnoses, and the evaluation of the same manifestations under different diagnoses, are to be avoided).  Furthermore, the record does not show, and the Veteran has not alleged, that his degenerative arthritis of the lumbar spine results in bladder or bowel impairment.  Therefore, the Board finds that separate ratings for neurological impairment are not warranted.

In sum, the Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for the Veteran's degenerative arthritis of the lumbar spine.  Therefore, the benefit of the doubt doctrine is not applicable, and his increased rating claim must be denied.  38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7.

	(CONTINUED ON NEXT PAGE)
ORDER

Entitlement to a rating in excess of 10 percent from September 18, 2009 to May 20, 2014 is denied. 

Entitlement to a rating in excess of 20 percent from May 20, 2014 to December 15, 2016 is denied. 

Entitlement to a rating in excess of 40 percent therefrom for degenerative arthritis of the lumbar spine is denied. 





____________________________________________
THOMAS H. O'SHAY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s