Citation Nr: 1761179
Decision Date: 12/29/17 Archive Date: 01/02/18

DOCKET NO. 09-40 639 ) 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 20 percent for chronic low back pain from multilevel degenerative disc disease and spinal stenosis.

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

T. Booker, Associate Counsel

INTRODUCTION

The Veteran served on active duty from October 1966 to September 1968.

This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York.

The Veteran testified before the undersigned during an August 2012 hearing. A transcript is of record.

The Board previously remanded the matter in April 2014 and September 2016 for additional development.

This appeal was processed using the Virtual VA paperless claims processing system. Any future consideration of the appeal should take the electronic record into consideration.

FINDING OF FACT

The Veteran’s chronic low back pain from multilevel degenerative disc disease and spinal stenosis is not manifested by forward thoracolumbar flexion limited to 30 degrees or less, or by favorable ankylosis of the entire thoracolumbar spine.

CONCLUSION OF LAW

The criteria for a 40 percent rating for chronic low back pain from multilevel degenerative disc disease and spinal stenosis are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5242 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326.

Increased Rating

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1.

Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2.

Where there is a question as to which of two disability ratings shall be applied, the higher rating is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7.

When, after careful consideration of the evidence, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3.

For musculoskeletal disorders the Board considers whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 204 -07 (1995). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45.

Painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59.

Although pain may cause a functional loss, pain itself does not constitute functional loss. Pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

Lumbar degenerative disc disease

Thoracolumbar disabilities of the spine are evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5237 and 5242. An intervertebral disc syndrome is evaluated under the general rating formula or under the formula for rating intervertebral disc syndrome based on incapacitating episodes; whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243.

An incapacitating episode is defined as 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1).

In pertinent part, the General Rating Formula applies the following rating criteria, 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 rating of 20 percent is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, combined range of motion 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. Id.

A rating of 40 percent is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id.

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is from zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (2).

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. at Note (2). See also 38 C.F.R. § 4.71a, Plate V.

The Board finds that for the entire appeal period even with consideration of functional loss due to pain, pain, stiffness, and flare-ups of pain, the Veteran had limitation of motion approximating forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; and muscle spasms or guarding severe enough to result in an abnormal gait. As such, there is no basis for an increased rating. As stated above, a 40 percent rating is assigned with forward flexion of the thoracolumbar spine at 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. VA examinations in July 2008 and July 2010 identified at least 50 degrees of thoracolumbar flexion, with mild to moderate lumbar pain noted at the end of the range of motion. Neither examination revealed evidence of thoracolumbar ankylosis. While only active range of motion was measured during these exams, a March 2017 VA examiner retrospectively opined that the passive range of motion was likely the same as active or possibly was better. Additionally, he opined that pain would be present with weight bearing but not at rest and that there would be minimal pain with non-weight bearing use. A subsequent September 2012 VA examination recorded the Veteran’s lumbar flexion at 70 degrees with localized tenderness.

During an August 2012 hearing the appellant testified that he had daily back pain that impacted his ability to work, walk or sit for prolonged periods. The Veteran stated that he could not sleep on his stomach or back, but could only rest on his side in the fetal position. The Veteran reported being medicated with an epidural approximately every eight months. Subjectively the Veteran reported that his pain ranged from a “3” to a “10” on a scale of 10, depending on whether he received his prescribed epidural. The Veteran also noted using Motrin and Gabapentin.

At a March 2017 VA examination the Veteran described having a significant increase in lumbar pain with radiation down the right buttock. The examiner noted that the Veteran was “unable to move significantly to perform anything meaningful”.

Increased or separate ratings are warranted based on neurologic manifestations of the Veteran’s lumbar spine disability. The General Rating Formula of Diseases and Injuries of the Spine allows for separate evaluation of any associated objective neurologic abnormalities. 38 C.F.R. § 4.71a, Note (1). Hence, it is notable that in a May 2017 rating decision the Veteran was granted entitlement to service connection for left and right lower extremity radiculopathy associated with chronic low back pain from multilevel degenerative disk disease and spinal stenosis with each lower extremity separately rated as 20 percent disabling.

The March 2017 VA examiner did not test range of motion, or perform repetitive-use testing to avoid pain, spasm, and immobilization of the Veteran. The examiner considered the Veteran’s entire record, but could not speculate that pain, weakness, fatigability or incoordination significantly limits functional ability with repeated use over time. Muscle spasm and guarding resulted in an abnormal gait or abnormal spinal contour. Localized tenderness did not, however, result in an abnormal gait or abnormal spinal contour. The examiner noted a disturbance of locomotion, interference with sitting, and interference with standing. While the examiner described the Veteran’s disability as severely incapacitating, the examiner found that there had been no incapacitating episodes of back pain over the prior 12 months that required physician prescribed bed rest. Indeed all previous VA examinations show that the Veteran did not report having incapacitating episodes requiring physician prescribed bed rest so as to warrant a higher rating under the formula for rating intervertebral disc syndrome based on incapacitating episodes. The March 2017 examiner did note that the Veteran constantly used a cane to ambulate due to spinal stenosis and lumbosacral strain, and that the Veteran uses a walker for long walks or short trips and uses a scooter on longer vacations.

In reviewing the evidence of record, there is no evidence of record that demonstrates either forward thoracolumbar flexion limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. The evidence, when considered in light of the rating schedule, shows that the Veteran’s chronic low back pain from multilevel degenerative disc disease and spinal stenosis symptoms is contemplated by the applicable rating criteria, to include functional impairment and loss due to pain, flare-ups and repetitive use. There is no evidence that the disability is manifested by pathology that is not encompassed by his limitations. It bears repeating that the general rating formula for the spine evaluates diseases and injuries of the spine based upon limitation of motion, and that those criteria are controlling regardless whether there are 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. 38 C.F.R. § 4.71a. Further, as noted the appellant is receiving additional compensation for lower extremity radiculopathy due to this disorder. Without evidence of forward thoracolumbar flexion limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine an increased evaluation is not in order.

In sum, based on the evidence of record and the applicable law the criteria are not met for a 40 percent rating for chronic low back pain from multilevel degenerative disc disease and spinal stenosis. The claim is denied.

In making this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claim, the doctrine is not applicable. 38 U.S.C. § 5107.

ORDER

Entitlement to a rating greater than 20 percent for chronic low back pain from multilevel degenerative disc disease and spinal stenosis is denied.

____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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