Citation Nr: 18132263
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 12-08 131
DATE:	September 6, 2018
Entitlement to a disability evaluation in excess of 40 percent for a low back strain with degenerative disc disease (DDD) of the lumbar spine (excluding a temporary 100 percent rating from October 12, 2011 to January 31, 2012) is denied.
There has been no showing of ankylosis at any level of the Veteran’s spine at any point during the appeal period.
The criteria for a disability rating in excess of 40 percent for a lumbar disability have not been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a (2017).
The Veteran served on active duty in the United States Air Force from September 1948 to September 1952, and from October 1952 to August 1970.
This case comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.
This matter was previously before the Board in October 2017, at which time it was remanded for additional development.  That development having been completed, the matter has been returned to the Board for appellate review.
Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  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 a duty to assist argument).
1. Entitlement to a disability evaluation in excess of 40 percent for a lumbar spine disability
Disability evaluations (ratings) are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.
A rating granted following an initial award of service connection may be “staged,” that is, comprised of successive ratings reflecting variations in the disability’s severity since the date of service connection.  Separate ratings can be assigned for separate periods of time based on the facts found.  Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. Ap. 119 (1999).
Back disabilities are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), specified in 38 C.F.R. § 4.71a.  If there is intervertebral disc disease, the rating criteria specified in the Formula for Rating Intervertebral Disk Syndrome Based on Incapacitating Episodes may be applicable.  In this case, the Veteran’s back disability has been evaluated under Diagnostic Code (DC) 5242, for degenerative arthritis of the spine.
A 40 percent evaluation is warranted for favorable ankylosis of the entire thoracolumbar spine or forward flexion of the thoracolumbar spine of 30 degrees or less.  The only criterion which warrants an evaluation in excess of 40 percent for limitation of motion of the thoracolumbar spine is where there is unfavorable ankylosis of the thoracic spine.  Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating, and unfavorable ankyloses of the entire spine warrants a 100 percent rating.
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 Rating Schedule allows evaluation of intervertebral disc syndrome (IVDS) based on incapacitating episodes.  38 C.F.R. § 4.71a, DC 5243.  An incapacitating episode is a period of acute signs and symptoms that requires bed rest and treatment by a physician.  38 C.F.R. § 4.71a, Note (1).  As the record does not reflect any episodes of prescribed bed rest and treatment having a total duration of at least two weeks during any twelve month period within the current appeal period, an evaluation higher than 10 percent is unavailable under the formula for rating IVDS based on incapacitating episodes, and will not be discussed further.
Back disability is, as noted above, rated on limitation of motion, or may be rated based on subjective complaints of pain, if there is objective confirmation of arthritis on radiologic examination.  DCs 5003, 5010.  A 10 percent evaluation is the maximum schedular evaluation available for arthritis of one joint or group of joints under DCs 5003 or 5010, so application of these DCs would not result in a more favorable evaluation for the Veteran.  No further discussion of those DCs is required.
When evaluating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates additional functional loss due to pain, pursuant to 38 C.F.R. §§ 4.40 and 4.45.  The diagnostic codes pertaining to range of motion do not subsume §§ 4.40 and 4.45.  The rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups.  DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011).
The Veteran is currently in receipt of a 40 percent disability rating for the entirety of the appeal period.  Entitlement to a higher rating under the General Rating Formula for Diseases and Injuries of the Spine requires a showing of either unfavorable ankylosis of the entire thoracolumbar spine or of the entire spine.  Neither showing is present in this case.
At the Veteran’s June 2009 VA examination, there was no finding of ankylosis at any level of the spine.  Moreover, straight leg raise testing was negative bilaterally, both seated and supine.  Range of motion testing revealed flexion to 60 degrees, extension to 20, right and left lateral flexion to 25, right lateral rotation to 25, and left lateral rotation to 20.  The examiner concluded the Veteran’s “[r]ange of motion [was] consistent with baseline for natural aging.”  
A second VA examination was conducted in February 2018.  That examination showed significantly decreased range of motion, the Veteran demonstrating flexion to 20 degrees, extension to 0, right and left lateral flexion to 15, and right and left lateral rotation to 15, with pain on testing, and additional loss of range of motion with repetitive use testing.  There was pain with weight bearing and tenderness to palpation of the paralumbar musculature, the examiner deeming the examinations findings consistent with the Veteran’s complaints of loss of function during flareups or with repetitive use over time.  There was, however, no guarding and no spasm, and critically, no ankylosis at any level of the spine.  
The Board also notes that while the Veteran’s treatment records covering the period at issue reflect ongoing back problems including pain, stiffness, and loss of mobility, there has never been any showing of ankylosis at any level of the spine.  Because ankylosis has never been shown, a rating in excess of 40 percent for the Veteran’s lumbar disability is not available in this case.  
Moreover, because the 40 percent rating is the highest available rating for limitation of motion and all higher ratings require ankylosis, the provisions governing functional loss are not applicable in this case.  Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997) (The provisions of 38 C.F.R. §§ 4.40, 4.45 are not for consideration where the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis).  
As such, the evidence preponderates against a higher evaluation in this case.  There is no reasonable doubt to be resolved in the Veteran’s favor.

Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Department of Veterans Affairs 

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