INTERVERTEBRAL DISC SYNDROME

APRIL MADDOX · 2024 · Case ID: 24032895

DENIED

Summary

The veteran, who served in the United States Marine Corps from October 1981 to April 1996, appeals the denial of disability ratings in excess of 20 percent for his service-connected degenerative disc disease (DDD) of the lumbar spine and cervical spine, effective May 4, 2011. The veteran has a history of low back and neck pain since service, with initial service connection granted for mild degenerative changes and minimal nerve root irritation in the lumbar spine, and noncompensable ratings for cervical spine DDD. The case has a complex procedural history involving multiple remands from the Board of Veterans' Appeals and the Court of Appeals for Veterans Claims. The Board reviewed VA examination reports from 2009 through 2021, as well as the veteran's testimony. The veteran reported daily pain, limitations in sitting and standing, and flare-ups. However, the Board found that the objective range of motion measurements, even during reported flare-ups, did not meet the criteria for higher ratings under the General Rating Formula for Diseases and Injuries of the Spine. Specifically, forward flexion measurements for both the lumbar and cervical spine, even during flare-ups, did not reach the thresholds required for ratings above 20 percent. The Board also considered the impact of pain and functional limitations but concluded they did not warrant higher ratings, as the pain did not consistently result in additional functional loss or limitation of motion beyond what was already rated. The Board denied higher ratings for both spinal conditions.

Rationale

Lumbar flexion measurements did not meet criteria for higher rating.; Pain did not result in additional functional loss or limitation of motion.; No incapacitating episodes requiring bed rest were documented.

Service Branch

MARINE CORPS

Special Benefit

NO SPECIAL BENEFIT

Docket No.

10-08 044

Full Decision Text

Citation Nr: 24032895
Decision Date: 11/13/24 Archive Date: 11/13/24

DOCKET NO. 10-08 044
DATE: November 13, 2024

ORDER

A disability rating in excess of 20 percent for degenerative disc disease of the lumbar spine, beginning May 4, 2011, is denied.

A disability rating in excess of 20 percent for degenerative disc disease of the cervical spine, beginning May 4, 2011, is denied.

FINDINGS OF FACT

1. For the entire appeal period beginning May 4, 2011, the Veteran's lumbar spine disability has been manifested by subjective complaints of pain and stiffness and objective findings of forward flexion greater than 30 degrees. While there is evidence of disc disease, there is no evidence of incapacitating episodes.

2. For the entire appeal period beginning May 4, 2011, the Veteran's cervical spine disability has been manifested by subjective complaints of pain and stiffness and objective findings of forward flexion greater than 15 degrees. While there is evidence of disc disease, there is no evidence of incapacitating episodes.

CONCLUSIONS OF LAW

1. Beginning May 4, 2011, the criteria for a disability rating greater than 20 percent for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C. § 1155, 5103(a), 5103A, 5107(b); 38 C.F.R. § 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5292-5242.

2. Beginning May 4, 2011, the criteria for a disability rating greater than 20 percent for degenerative disc disease of the cervical spine have not been met. 38 U.S.C. § 1155, 5103(a), 5103A, 5107(b); 38 C.F.R. § 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, DC 5243.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Marine Corps from October 1981 to April 1996.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which, in part, increased the Veteran's disability rating for DDD, C5-6, cervical spine from noncompensable to 10 percent disabling effective June 29, 2009, and continued a 10 percent disability rating for DDD, lumbar spine L3-4, L5-S1. The Veteran timely appealed this decision.

In October 2010, the Veteran testified before the undersigned Acting Veterans Law Judge at a Travel Board hearing. A transcript of this proceeding is of record.

In April 2011, the Board remanded these claims for additional development. During that time, the RO, via an August 2012 rating decision, increased the Veteran's lumbar spine and cervical spine disability ratings to 20 percent each, both effective May 4, 2011.

In February 2015, the Board denied disability ratings in excess of 10 percent prior to May 4, 2011, and greater than 20 percent thereafter for the Veteran's lumbar and cervical spine disabilities.

The Veteran appealed the February 2015 Board decision to the Court of Appeals for Veterans Claims (Court). In an April 2016 Order, the Court granted a Joint Motion for Partial Remand (JMPR) and vacated and remanded the issues of entitlement to disability ratings in excess of 20 percent for the Veteran's lumbar and cervical spine disabilities, for the period beginning May 4, 2011, for development consistent with the JMPR. In November 2016, in response to the April 2016 JMPR, the Board remanded the issues on appeal for further development. The Board remanded the case a second time in August 2017.

In January 2019, the Board again denied the Veteran's claims for ratings in excess of 20 percent for his lumbar and cervical spine disabilities. The Veteran appealed to the Court a second time, and in a January 2020 Order, the Court granted a Joint Motion for Remand (JMR) and vacated and remanded the issues on appeal for development consistent with the JMR. In July 2020 in response to the January 2020 JMR, the Board remanded the issues on appeal for further
November 2016, in response to the April 2016 JMPR, the Board remanded the issues on appeal for further development. The Board remanded the case a second time in August 2017.

In May 2022, the Board found there was substantial compliance with the remand directives; however, the Board again denied the Veteran's claims for ratings in excess of 20 percent for his lumbar and cervical spine disabilities. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran appealed to the Court a third time, and in a December 2022 Order, the Court granted a Joint Motion for Remand (JMR), finding the Board provided inadequate reasons and bases to support the denial, and vacated and remanded the issues on appeal for development consistent with the JMR. These matters are now returned to the Board.

Legal Criteria

The Veteran is currently in receipt of a 20 percent disability evaluation for his lumbar spine disability under DC 5292-5242 and a 20 percent disability evaluation for his cervical spine disability under DC 5243.

Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or 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.?

In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1?Vet. App.?589 (1991). The medical, as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38?C.F.R. §§?4.1, 4.2, 4.10.

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 required for that rating.? Otherwise, the lower rating will be assigned.?See?38?C.F.R. §?4.7. Reasonable doubt regarding the degree of disability will be resolved in the Veteran's favor.?38?C.F.R. §?4.3.? Separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings.?Hart v. Mansfield, 21?Vet. App.?505.?

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or the evidence is persuasively against a claim, in which case, the claim is denied.?38?U.S.C. §?5107 (b);?38?C.F.R. §?3.102.

During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id.

If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 511
for the evaluation of musculoskeletal disabilities." Id.

If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied.

Prior to the regulatory change, the criteria for evaluating disabilities of the spine are contained in a General Rating Formula for Diseases and Injuries of the Spine. The formula provides that 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, the following ratings are assigned:

A rating of 10 percent is warranted when there is 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 is greater than 120 degrees but not greater than 235 degrees, or there is 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 height. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.

A rating of 20 percent is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, 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, reversed lordosis, or abnormal kyphosis. Id.

A rating of 30 percent is warranted when there is forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. Id.

A rating of 40 percent is warranted when there is unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id.

A rating of 50 percent is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a rating of 100 percent is warranted for unfavorable ankylosis of the entire spine. Id.

There are several notes relevant to the rating criteria. 38 C.F.R. § 4.71a. Those pertinent to this appeal are included here. Note (1): Concerning disabilities affecting the spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate DC. Note (2): Normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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 combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. 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. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, 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 dysph
and of the thoracolumbar spine is 240 degrees. 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. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.

In addition to the General Rating Formula for Diseases and Injuries of the Spine, intervertebral disc syndrome may be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. See 38 C.F.R. § 4.71a, DC 5243.

The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that when intervertebral disc syndrome is productive of incapacitating episodes having a total duration of at least one week but less than two weeks during the past twelve months, a 10 percent rating is assigned. When incapacitating episodes have a total duration of at least two weeks but less than four weeks during the past twelve months, a 20 percent rating is assigned. When incapacitating episodes have a total duration of at least four weeks but less than six weeks during the past twelve months, a 40 percent rating is assigned. When incapacitating episodes have a total duration of at least six weeks during the past twelve months, a maximum 60 percent rating is assigned.

Note (1) following 38 C.F.R. § 4.71a, DC 5243 provides that 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.

As of February 7, 2021, under the amended criteria, DC 5243, intervertebral disc syndrome, is assigned "only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign DC 5242 for all other disc diagnoses." Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine 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 § 4.25.

Factual Background

The Veteran contends that his cervical and lumbar spine disabilities warrant higher disability ratings. By way of history, the Veteran first complained of chronic low back and neck pain during his active service. He submitted a claim for service connection for "back pain" immediately after his discharge from service and, by rating decision dated in September 1996, the RO granted service connection for very mild degenerative changes disk space L3-L4 and L5-S1, (MRI), with minimal nerve root irritation L5-S1, (EMG), assigning a 10 percent disability rating effective May 1, 1996. Subsequently, in a January 1997 rating decision, the RO granted service connection for DDD, C5-6, cervical spine, assigning a noncompensable disability rating effective May 1, 1996. These ratings were continued in an October 2002 rating decision and, in a February 2008 rating decision, the Veteran was awarded a temporary total rating based on surgical convalescence pursuant to 38 C.F.R. § 4.30, effective December 5, 2007, but a noncompensable rating was continued from the cervical spine beginning April 1, 2008.

The Veteran filed the current claim on appeal in June 2009 and, by rating decision dated in August 2009, the RO increased the Veteran's disability rating for DDD, C5-6, cervical spine from noncompensable to 10 percent disabling effective June 29, 2009, and continued a 10 percent disability rating for DDD, lumbar spine L3-4, L5-S1. The Veteran disagreed with this decision and perfected this appeal.

As above, pursuant to the April 2016 JMPR, the period on appeal for both issues begins May 4, 2011. However, the Board must consider all pertinent evidence close in time to May
April 1, 2008.

As above, pursuant to the April 2016 JMPR, the period on appeal for both issues begins May 4, 2011. However, the Board must consider all pertinent evidence close in time to May 4, 2011. As such, evidence relevant to the severity of the Veteran's lumbar and cervical spine disorders during the appeal period includes VA examination reports dated in July 2009, May 2011, November 2012, January 2017, October 2017, and January 2021. Also relevant is the Veteran's testimony during the October 2010 Board hearing.

During the June 2009 VA spine examination, the Veteran denied a history of surgery on the lumbar spine. He reported pain all day, every day that is midline with no radiation. He did report some numbness and weakness intermittently in both legs. He reported nocturnal leg cramps. The Veteran reported that he did not use assistive devices for his lumbar spine, and he denied bowel or bladder incontinence. He reported taking 800mg Ibuprofen twice a day with relief of pain. He denied any physician-directed bed rest. He denied any specific activity restrictions. He reported that he cannot lift more than 100 pounds. The Veteran denied any flare-ups. Upon physical examination, it was noted that the Veteran walked without a limp or assistive devices. The lumbar spine had normal curvature with no tenderness or spasm. Range of motion was forward flexion from 0 to 90 degrees with no pain; extension from 0 to 40 degrees with pain; lateral flexion from 0 to 30 degrees with pain bilaterally; and bilateral rotation from 0 to 45 degrees with no pain. There was no diminution with repetitive testing. The lower extremities had 5/5 motor strength, 2+ deep tendon reflexes, normal sensation and no atrophy. He had negative straight leg raising. X-rays revealed DDD and facet arthropathy of the lumbar spine. The examiner provided a diagnosis of lumbar DDD. There was no evidence of ankylosis.

Regarding the cervical spine, the Veteran reported neck pain all day, every day that is midline with no numbness, radiation, or weakness. He denied the use of assistive devices. He also denied any physician-directed bed rest. Upon physical examination, it was noted that the cervical spine had a right anterior 3cm x 0.2cm, horizontal, well-healed surgical scar that is mobile, nontender, flat, and normal colored. The cervical spine had normal curvature with no tenderness or spasm. Range of motion was forward flexion from 0 to 40 degrees with no pain; extension from 0 to 40 degrees with pain; lateral flexion from 0 to 30 degrees bilaterally with pain; left rotation from 0 to 30 degrees; and right rotation from 0 to 40 degrees. There was no diminution with repetitive testing. The upper extremities had 5/5 motor strength, 2+ deep tendon reflexes, normal sensation, with no atrophy. X-rays revealed prior C5-6 anterior cervical fusion without obvious complication. The examiner provided a diagnosis of cervical fusion. There was no evidence of ankylosis.

During the October 2010 Board hearing the Veteran testified that he treated his lumbar and cervical spine disorders with pain medication and, while his doctor had recommended physical therapy, he could not take the time off from work for this. The Veteran also indicated that he could not sit for a long period of time and needed to move constantly to alleviate the pressure or pain.

During the May 2011 VA spine examination, the Veteran again denied a history of surgery on the lumbar spine. He reported pain all day, every day that is midline with no radiation. However, he did report tingling in feet and toes. The condition was reported to interfere with activities of daily living and occupation, in that the Veteran was unable to lift more than 15 pounds comfortably, unable to walk more than half a mile without having to stop, and unable to sit or stand for more than 10 minutes. The Veteran reported experiencing flare-ups three to four times per week, lasting for about an hour at a time. There was no physician-prescribed bed rest. The lumbar spine was found to have a normal curvature with no spasms. Range of motion testing revealed a flexion of 80 degrees, extension of 30 degrees, bilateral lateral flexion of 25 degrees, right lateral rotation of 30 degrees, and left lateral rotation of 40 degrees. Pain was noted with all ranges of motion. There was no additional limitation of motion noted upon repetition. The Veteran was diagnosed with lumbar DDD with spondylosis.

Regarding the cervical spine, it was noted that the Veteran had a history of a cervical fusion. The Veteran reported pain and limitations on activities of daily living, which included limitations on overhead work, inability to look up, and increasing difficulties with his job at a plantation. The condition flares three to four times per week, lasting for about an hour at a time. There was no physician-prescribed bed rest. Range of motion testing revealed a flexion of 30 degrees with no pain, extension of 20 degrees with pain that diminishes to 10 degrees upon repetition, right lateral flexion of 10 to 20 degrees with pain, left lateral flexion of -10 to 10 with pain, right lateral rotation of 20 with pain, and left lateral rotation of 15 with pain. There was no additional loss of motion or pain with repetition other than already noted. The Veteran was diagnosed with cervical fusion.

During the November 2012 VA spine examination, the Veteran reported flare-ups of the lumbar spine that are worse in the morning and cold weather, resulting in a stiff back and loss of sleep. Range of motion testing revealed a flexion of 45 degrees with pain, extension of 20 degrees with pain, bilateral lateral flexion of 15 degrees with pain, and bilateral lateral rotation of 20 degrees with pain. There was no additional loss of motion upon repetition. Functional loss included less movement than normal, weakened movement, pain on movement, and interference with sitting, standing, and/or weight-bearing. There was no tenderness, spasm, or guarding noted. Muscle strength and reflexes were normal. Sensory examination revealed decreased sensation in the right anterior thigh. The Veteran was diagnosed with degenerative arthritis of the spine and intervertebral disc syndrome. The examiner opined regarding the Veteran's functionality that, even though he works full time, he is unable to walk any long distances or sit for more than 10 minutes. The Veteran's job is fairly active, and he ends up having to rest a lot of the time.

Regarding the cervical spine, the Veteran reported a history of a cervical fusion. The Veteran also reported a history of flare-ups whenever he tilts his head back, resulting in arm tingling, weakness, and numbness. Range of motion testing revealed a flexion of 40 degrees with pain, an extension of 15 degrees with pain, a right lateral flexion of 30 degrees with pain, a left lateral flexion of 40 degrees with pain, and a bilateral lateral rotation of 40 degrees with pain. There was no additional loss of motion upon repetition. Functional effects included less movement than normal, weakened movement, excess fatigability, and pain on movement. There was no tenderness, spasm, or guarding noted. Muscle strength, sensory examination, and reflexes were normal, with the exception of wrist flexion and extension, which was active movement against some resistance. The Veteran was diagnosed with cervical disc disease. The examiner opined regarding the Veteran's functionality that, he experiences difficulty bending his head back during the course of his duties in his occupation, which involves hunting and bird watching.

During the January 2017 VA spine examination, the Veteran noted low back pain, especially in the morning, with numbness in the front of his legs that was worse in cold weather. He did not report any flare-ups of his back. Range of motion testing revealed a flexion of 80 degrees with pain starting at 60 degrees, extension of 25 degrees with pain, bilateral lateral flexion of 20 degrees with pain, right lateral rotation of 20 degrees with pain, and left lateral rotation of 25 degrees with pain. There was no additional loss of motion upon repetition. There was no tenderness, spasm, or guarding noted. Muscle strength and reflexes were normal. Sensory examination was normal. The Veteran was diagnosed with degenerative arthritis of the spine, spinal stenosis, and intervertebral disc syndrome. No radiculopathy or ankylosis was noted. Finally, the Veteran did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran was diagnosed with degenerative arthritis of the spine, IVDS, and spinal stenosis.

Regarding the cervical spine, the Veteran reported neck stiffness and some limited range of motion which makes it difficult to perform his duties. Range of motion testing revealed a flexion of 40 degrees with pain, an extension of 15 degrees with pain, a bilateral flexion of 30 degrees with pain, and a bilateral lateral rotation of 45 degrees with pain. There was no additional loss of motion upon repetition and the pain noted on exam did not result in/cause functional loss. There was no tenderness, spasm, or guarding noted. Muscle strength, sensory examination, and reflexes were normal. No radiculopathy or ankylosis was noted. The Veteran was diagnosed with degenerative arthritis of the spine, spinal fusion, and spinal stenosis.

During the October 2017 VA spine examination, the Veteran indicated that he could only sit about 20 minutes and frequently has to change positions for comfort. He reported flare up of that back described as pain that goes into his legs and thighs with sitting. Range of motion testing revealed a flexion of 70 degrees with pain starting at 70 degrees, extension of 15degrees with pain starting at 15 degrees, bilateral lateral flexion of 15 degrees with pain with pain starting at 15 degrees, bilateral flexion of 15 degrees with pain starting at 15 degrees, and bilateral rotation of 20 degrees with pain starting at 20 degrees. There was no additional loss of motion upon repetition. Muscle guarding and spasm resulting in abnormal gait or abnormal spine contour were noted. Muscle strength and reflexes were normal and no atrophy or ankylosis was noted. Bilateral straight leg raising test results were positive. Mild bilateral lower extremity intermittent pain, and moderate bilateral lower extremity paresthesia and numbness were noted. Finally, the Veteran did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran was diagnosed with degenerative arthritis of the spine, IVDS, and spinal stenosis.

Regarding the cervical spine, the Veteran reported extreme stiffness and frequently has to pull himself up after a church service. Range of motion testing revealed a flexion of 40 degrees with pain starting at 40 degrees, an extension of 5 degrees with pain starting at 5 degrees, a bilateral flexion of 10 degrees with pain starting at 10 degrees, a right lateral rotation of 20 degrees with pain starting at 20 degrees and left lateral rotation of 15 degrees with pain starting at 15 degrees. Guarding not resulting in abnormal gait or abnormal spinal contour was noted. Decreased sensory was noted in the left forearm and hand/fingers. Radiculopathy was noted with bilateral moderate intermittent pain in the upper extremities, mild paresthesias in the right upper extremity and moderate in the left upper extremity. No ankylosis was noted. Finally, the Veteran did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months.

In an accompanying medical opinion, the examiner noted that the May 2011 examination does not comment on the additional functional impairment or limitation of motion caused by the reported flare-ups, other than to say "It flares 3-4 times a week, lasting an hour, during which he can do minimal activity and has to take his medications" for the cervical spine and "It flares the same way as does the cervical spine" for the lumbar spine. The November 2012 examination notes that there are reported flare-ups for the cervical spine and lumbar spine conditions and provides a description in the Veteran's own words, however, it does not provide a comment on the additional functional impairment or limitation of motion caused by the reported flare-ups. It notes that there was not additional limitation in range of motion of the cervical or lumbar spine following repetitive use testing but does not directly address the flare-ups in terms of range of motion. Based on the review of the May 2011 and November 2012 examination reports and given that they lack necessary information about the flare-ups, the examiner concluded that it is not possible to quantify the degree of impairment that the reported flare-ups would cause. The examiner stated that if an examination is not being performed during a flare-up, it is not possible to objectively evaluate the degrees of impairment and additional limitations that a flare-up would cause without resorting to speculation because all of the provided information about the flare-ups comes from the Veteran's subjective reporting.

During the January 2021 VA spine examination, range of motion testing of the Veteran's lumbar spine resulted in forward flexion to 70 degrees; extension to 30 degrees; bilateral lateral flexion to 20 degrees; and bilateral lateral rotation to 20 degrees. There was evidence of pain with weight bearing, active motion, and passive motion, which did not result in functional loss. There was objective evidence of crepitus. There was objective evidence of severe localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran was able to complete repetitive use testing without reduction in range of motion. The Veteran reported experiencing flare-ups. Specifically, the Veteran reported severe flare-ups that resulted in difficulty with prolonged walking, standing, sitting, and using stairs. There was evidence of localized tenderness not resulting in abnormal gait or abnormal spinal contour. Straight leg raising testing was negative. The examiner noted that the Veteran had bilateral lower extremity radiculopathy. There was no evidence of ankylosis and no evidence of any other neurological abnormalities. The examiner noted that the Veteran had IVDS of the thoracolumbar spine, with no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran reported the occasional use of crutches.

Regarding the cervical spine, range of motion testing resulted in forward flexion to 45 degrees; extension to 30 degrees; bilateral lateral flexion to 45 degrees; and bilateral lateral rotation to 60 degrees. There was evidence of pain with active motion and passive motion, which did not result in functional loss. There was no objective evidence of crepitus. There was objective evidence of moderate localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran completed repetitive use testing without reduction in range of motion. The Veteran reported experiencing flare-ups, noting difficulty with looking upward (i.e., bird watching). There was evidence of localized tenderness not resulting in abnormal gait or abnormal spinal contour. There was no evidence of radiculopathy. There was no evidence of ankylosis. There was also no evidence of other neurologic abnormalities. There was no evidence of IVDS of the cervical spine. The Veteran denied using assistive devices.

In a January 2021 addendum, the January 2021 VA examiner specifically considered the Veteran's lay statements and opined that the Veteran's condition has progressed over time and that he has had functional impairment since his examinations in 2011, 2012, and 2017. The examiner opined that it was not possible to estimate what was seen during those examinations because his condition was different at that time given the progression of the disease. The examiner further stated that the Veteran's "disease has progressed significantly since those visits, and I think it would be impossible for any provider to quantify a level of impairment on a claimant in the past prior to the progression of their disease."

In a March 2021 addendum, the January 2021 VA examiner noted that during flare-ups
2021 VA examiner specifically considered the Veteran's lay statements and opined that the Veteran's condition has progressed over time and that he has had functional impairment since his examinations in 2011, 2012, and 2017. The examiner opined that it was not possible to estimate what was seen during those examinations because his condition was different at that time given the progression of the disease. The examiner further stated that the Veteran's "disease has progressed significantly since those visits, and I think it would be impossible for any provider to quantify a level of impairment on a claimant in the past prior to the progression of their disease."

In a March 2021 addendum, the January 2021 VA examiner noted that during flare-ups, the Veteran's range of motion for his lumbar spine was reduced to 60 degrees forward flexion; 20 degrees extension; 20 degrees bilateral lateral flexion; and 20 degrees bilateral lateral rotation. The Veteran's range of motion for his neck was reduced during flare-ups to 30 degrees forward flexion; 20 degrees extension; 30 degrees bilateral lateral flexion; and 50 degrees lateral rotation.

Analysis

Applying the facts to the criteria set forth above, the Board finds that the Veteran's service-connected degenerative disc disease of the lumbar spine and degenerative disc disease of the cervical spine most closely approximates the criteria for the currently assigned 20 percent disability evaluation under the General Rating Formula for Diseases and Injuries of the Spine, for the entire rating period on appeal.

Regarding the Veteran's lumbar spine, the lay and medical evidence demonstrates that the Veteran's symptoms do not result in additional functional limitation to a degree that would support a rating in excess of a 20 percent disability rating at any time during the appeal period. As above, the Veteran had lumbar flexion to 90 degrees in June 2009, 80 degrees in May 2011, 45 degrees in November 2012, 80 degrees in January 2017, 70 degrees in October 2017, and 70 degrees (60 degrees during flareups) in January 2021. Flexion to 30 degrees or less is required for a higher rating based on limitation of motion. 38 C.F.R. § 4.71a, DCs 5292-5242.

Regarding the Veteran's cervical spine, the lay and medical evidence demonstrates that the Veteran's symptoms do not result in additional functional limitation to a degree that would support a rating in excess of a 20 percent disability rating at any time during the appeal period. As above, the Veteran had cervical flexion to 40 degrees in June 2009, 30 degrees in May 2011, 40 degrees in November 2012, 40 degrees in January 2017, 40 degrees in October 2017, and 45 degrees (30 degrees during flareups) in January 2021. Flexion to 15 degrees or less or favorable ankylosis of the entire cervical spine is required for a higher rating based on limitation of motion. 38 C.F.R. § 4.71a, DCs 5262-5271.

The Board has considered whether additional functional impairment due to factors such as pain, weakness and fatigability demonstrate additional limitation of motion or function to warrant a higher rating for the Veteran's lumbar spine and cervical spine. See 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca at 206-07. The evidence shows no atrophy or decrease in strength in either the lumbar spine or cervical spine. Although pain was noted throughout VA examinations, the examiners routinely found this pain did not cause additional functional loss. Neither Mitchell nor Sharp indicate that the mere presence of pain equates to functional limitation of motion. Rather, that the impact pain has on motion has to be considered when evaluating functional loss. Thus, the Board finds that the Veteran's subjective complaints of pain have been contemplated in the current rating assignment, and the current rating is based on the objectively demonstrated reduced motion and impairment. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). See also Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). Moreover, the available medical findings do not show that painful motion, limitation of motion on repetitive use testing, or pain or limitation of motion on active motion/passive motion/in weight-bearing/nonweight-bearing resulted in functional loss warranting the assignment of any higher evaluation for the lumbar or cervical spine during the entire appeal period. See Correia v. McDonald, 28 Vet. App. 158 (2016).

As noted above, the Veteran contends that he experiences flare-ups and the Veteran's flare-ups have been considered as required
seki, 25 Vet. App. 32, 43 (2011). See also Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). Moreover, the available medical findings do not show that painful motion, limitation of motion on repetitive use testing, or pain or limitation of motion on active motion/passive motion/in weight-bearing/nonweight-bearing resulted in functional loss warranting the assignment of any higher evaluation for the lumbar or cervical spine during the entire appeal period. See Correia v. McDonald, 28 Vet. App. 158 (2016).

As noted above, the Veteran contends that he experiences flare-ups and the Veteran's flare-ups have been considered as required by Sharp v. Shulkin, 29 Vet. App. 26 (2017). However, there is no indication that the Veteran's flare-ups result in additional loss of motion which would support a higher rating. As above, the January 2021 VA examiner found that the Veteran had forward flexion of the lumbar spine to 70 degrees and forward flexion of the cervical spine to 45 degrees. Furthermore, the March 2021 addendum opinion shows that the Veteran's range of motion was reduced to, at worst, 60 degrees forward flexion of the lumbar spine and 30 degrees forward flexion of the cervical spine during flare-ups. As such, even during flare-ups, the Veteran's loss of motion (i.e., lumbar flexion to 60 degrees and cervical flexion to 30 degrees) does not rise to the level of a higher disability rating for either the lumbar or cervical spine. Unfortunately, the earlier VA examination reports do not show range of motion during flare-ups and the January 2021 VA examiner found that it would be "impossible for any provider to quantify a level of impairment on a claimant in the past prior to the progression of their disease." However, based on the findings of the January 2021 VA examination, specifically, that the Veteran's condition had gotten progressively worse since his previous examinations in 2011, 2012, and 2017, it stands to reason that the Veteran's flare-ups are worse now than they were prior to January 2021. Thus, a higher disability evaluation due to flare-ups is not warranted.

The Board has also considered whether any other diagnostic codes might serve as a basis for an increased rating. In this regard, DC 5003 addresses degenerative arthritis. However, in this case, the maximum evaluation possible under DC 5003 is 10 percent, as only one major joint or group of minor joints is involved in this claim. Therefore, it does not allow for a higher evaluation. Also, while the Veteran has been diagnosed with IVDS, the evidence is negative for any incapacitating episodes requiring bedrest by a physician. There are no other applicable codes available for consideration.

In denying higher ratings for the Veteran's cervical and lumbar spine disabilities, the Board has considered the Veteran's statements that his disabilities are worse, as well as his report of flare-ups of pain, inability to walk or stand for prolonged periods, and his use of a cane to ambulate. However, the Board finds the Veteran's statements, when considered with the medical evidence of record, do not meet the next higher rating criteria under VA regulations for either his lumbar or cervical spine.

Accordingly, the Board finds that the Veteran is not entitled to a disability rating in excess of 20 percent for his service-connected degenerative disc disease of the lumbar spine, or a disability evaluation in excess of 20 percent for his service-connected degenerative disc disease of the cervical spine.

APRIL MADDOX

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Risley, H.

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.

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