DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

J. RAGHEB · 2022 · Case ID: A22004341

DENIED

Summary

The Veteran, an Army Veteran who served from May 1966 to February 1968, appeals the denial of an increased disability rating for his service-connected lumbar spondylosis. The Veteran sought a rating higher than the existing 20 percent, contending that his condition warranted a higher evaluation based on reduced range of motion and pain. The Board reviewed multiple VA spine examinations conducted between March 2011 and February 2020, which consistently showed range of motion measurements supporting no more than a 20 percent rating. These VA examinations noted normal gait, no significant muscle spasm or guarding, and no ankylosis or radiculopathy. The Board also considered a private medical opinion from March 2011 and a DBQ from September 2018. However, the Board found the private opinion and DBQ inconsistent with the overall medical evidence, particularly the VA examinations, which were given higher probative value. The Board noted that while the March 2011 examination showed reduced flexion, the overall picture did not meet criteria for a higher rating, and no ankylosis was present. The Board also considered the criteria for intervertebral disc syndrome (IVDS) but found no evidence of IVDS or prescribed bed rest sufficient for a higher rating. The Board concluded that the evidence persuasively weighed against a rating higher than 20 percent. Therefore, the appeal for an increased rating was denied.

Rationale

VA examinations consistently showed range of motion measurements supporting no more than a 20 percent rating.; Private medical opinion and DBQ were found inconsistent with the overall medical evidence.; No evidence of ankylosis or IVDS sufficient for a higher rating was found.

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

200513-87704

Full Decision Text

Citation Nr: A22004341
Decision Date: 03/12/22 Archive Date: 03/12/22

DOCKET NO. 200513-87704
DATE: March 12, 2022

ORDER

Entitlement to a disability rating in excess of 20 percent for service-connected lumbar spondylosis is denied.

FINDING OF FACT

Throughout the period on appeal, the evidence of record is persuasively against a finding that the Veteran's lumbar spondylosis has been productive of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.

CONCLUSION OF LAW

The criteria for an award of a disability rating in excess of 20 percent for service-connected lumbar spondylosis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from May 1966 to February 1968.

The original rating decision underlying the present appeal was issued in September 2018 by a Department of Veterans Affairs (VA) Regional Office. The Veteran submitted a legacy notice of disagreement (VA Form 21-0958) in October 2018.

The Appeals Modernization Act (AMA) allows VA claimants to opt into the modernized review system by requesting review of a statement of the case (SOC) or supplemental SOC (SSOC) issued on or after February 19, 2019, if the opt-in is received within one year of the date of the notification of the underlying rating decision, or 60 days from the issuance of the SOC/SSOC, whichever is later. Here, the Veteran elected to appeal to the Board of Veterans' Appeals (Board) via the modernized appeal system in May 2020, after receiving an April 2020 SOC. See May 2020 VA Form 10182. Specifically, the Veteran requested the Hearing docket option pursuant to the AMA. 38 C.F.R. § 20.202(b)(2).

In November 2020, the Veteran testified at a Board hearing before a Veterans Law Judge. A transcript of the hearing has been associated with the record. Under the AMA, the Veteran had 90 days from the date of the November 2020 hearing to submit additional evidence.

Higher Rating

Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27.

When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999).

Regulations require that where there is a question as to which of two evaluations is to 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. 38 C.F.R. § 4.7.

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011).

Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.

Entitlement to a disability rating in excess of 20 percent for service-connected lumbar spondylosis is denied.

The Veteran seeks a disability rating in excess of 20 percent for his service-connected lumbar spondylosis.

The Veteran's lumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed.

Lumbar spine disabilities are evaluated either upon application of the General Rating Formula for Diseases and Injuries of the Spine ("General Formula"), or as intervertebral disc syndrome (IVDS) under the Formula for Rating IVDS Based on Incapacitating Episodes ("IVDS Formula"), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25

Under the General Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.

Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id.
, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.

Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1.

Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5.

As discussed above, effective February 7, 2021, VA adopted new regulations concerning musculoskeletal disabilities. Although those new regulations include changes in the definitions of Diagnostic Code 5242, they do not affect the overall rating criteria; therefore, there is no effect as it pertains to the evaluation of this claim.

By way of background, service connection was granted in a September 2018 rating decision as 20 percent disabling, effective December 20, 2010. The Veteran contends that he is entitled to an initial rating in excess of 20 percent.

For the reasons set forth below, the Board finds that the evidence of record is persuasively against the assignment of a disability rating in excess of 20 percent for service-connected lumbar spondylosis. In this regard, the Board finds that the evidence of record is persuasively against a finding that the Veteran's lumbar spondylosis has been productive of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.

The record includes a March 2011 private medical opinion submitted in support of the Veteran's initial claim for service connection in which the provider stated that the Veteran's range of motion of the lumbar spine showed reduced motion in all 6 primary planes of motion and that flexion was 30 degrees, extension 10 degrees, left and right lateral flexion 10 degrees each, and left and right rotation 'barely able.' See March 2011 private treatment records.

In connection with his claim for service connection, the Veteran was afforded a VA spine examination in May 2011. Upon examination, the Veteran's range of motion measurements were flexion to 40 degrees, extension to 15 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 20 degrees. The Veteran's gait was noted as normal. See May 2011 VA examination report.

The Veteran was afforded another VA spine examination in July 2017. The examiner indicated the Veteran's initial ranges of motion were 70 degrees with forward flexion, 15 degrees with extension, 25 degrees each with right and left lateral flexion, and 30 degrees each with right and left lateral rotation. The Veteran did not report flare ups. Following repetitive use testing, the examiner indicated that the Veteran experienced no additional loss of function or range of motion, and they also reported that pain, weakness, fatigability, or incoordination does not significantly limit functional ability with repeated use over a period of time. The examiner indicated that the Veteran did not suffer from guarding or muscle spasm of his thoracolumbar spine, did not suffer from any reduction in muscle strength or experience muscular atrophy, that his reflex and sensory examinations were normal, that he experienced no radicular pain or other signs or symptoms due to radiculopathy, that he had no other neurological abnormalities, that he did not suffer from IVDS, that he did not use an assistive device to ambulate, that he experienced no additional factors contributing to disability, and that there were no other pertinent physical findings, complications, conditions, signs, symptoms, or scars related to his diagnosis. See July 2017 VA examination report.

The Veteran was afforded another VA spine examination in May 2019. The examiner indicated the Veteran's initial ranges of motion were 75 degrees with forward flexion, 25 degrees with extension, 25 degrees each with right and left lateral flexion, and 25 degrees each with right and left lateral rotation. The Veteran did not report flare ups. Following repetitive use testing, the examiner indicated that the Veteran experienced no additional loss of function or range of motion, and they also reported that pain, weakness, fatigability, or incoordination does not significantly limit functional ability with repeated use over a period of time. The examiner noted that they are not able to describe in terms of range of motion and that they can't explain based on facts; may be that it takes a longer time to see difference in range of motion measurements. The examiner indicated that the Veteran did not suffer from guarding or muscle spasm of his thoracolumbar spine, did not suffer from any reduction in muscle strength or experience muscular atrophy, that his reflex and sensory examinations were normal, that he experienced no radicular pain or other signs or symptoms due to radiculopathy, that he had no other neurological abnormalities, that he did not suffer from IVDS, that he did not use an assistive device to ambulate, that he experienced no additional factors contributing to disability, and that there were no other pertinent physical findings, complications, conditions, signs, symptoms, or scars related to his diagnosis. The examiner remarked that there was no evidence of pain on passive range of motion testing or on non-weight bearing testing of the back, and that a goniometer was used for all joint range of motion measurements. See May 2019 VA examination report.

The Veteran was afforded another VA spine examination in February 2020. Based on an in-person examination and review of the Veteran's e-folder, the VA examiner noted the Veteran's 2010 diagnosis of chronic lumbar spondylosis as well as his 2020 diagnosis of left lower extremity radiculopathy. The examiner indicated the Veteran's initial ranges of motion were 60 degrees with forward flexion, 10 degrees with extension, 20 degrees each with right and left lateral flexion, and 20 degrees each with right and left lateral rotation. The Veteran did not report flare ups, but he reported daily lower back pain exacerbated by prolonged sitting, bending at the waist to tie shoes, and strenuous activities. The VA examiner noted pain on examination with all range of motion that causes functional loss, mild tenderness at midline lumbar area directly related to the diagnosed spondylosis, and evidence of pain with weight bearing. Following repetitive use testing, the examiner indicated that the Veteran experienced no additional loss of function or range of motion, and they also reported that pain, weakness, fatigability, or incoordination does not significantly limit functional ability with repeated use over a period of time. The Veteran was not examined immediately after repetitive use over time, but the examiner described his range of motion with repeated use over a period of time as unchanged from initial range of motion measurements. The examiner indicated that the Veteran did not suffer from guarding or muscle spasm of his thoracolumbar spine. The examiner reported that there was no ankylosis of the spine, no other neurologic abnormalities, and no IVDS. The examiner reported that the Veteran did not use an assistive device to ambulate, that he experienced no additional factors contributing to disability, and that there were no other pertinent physical findings, complications, conditions, signs, symptoms, or scars related to his diagnosis. The examiner remarked that there was evidence of pain on non-weight bearing testing of the back, but that passive range of motion testing cannot be performed or is not medically appropriate. See February 2020 VA examination report.

VA treatment records do not document a more severe level of impairment. The Veteran's treatment records regularly note a steady and non-antalgic gait, and the Veteran himself has reported improvement in his symptoms. See February, March, and May 2011, September 2013, February 2016, June and July 2019, and March 2020 VA treatment records. Further, March 2020 physical therapy records indicate that the Veteran had lumbar range of motion at 50 percent of range in all movements; this indicates that Veteran has forward flexion to 45 degrees, extension to 15 degrees, left and right lateral flexion to 15
appropriate. See February 2020 VA examination report.

VA treatment records do not document a more severe level of impairment. The Veteran's treatment records regularly note a steady and non-antalgic gait, and the Veteran himself has reported improvement in his symptoms. See February, March, and May 2011, September 2013, February 2016, June and July 2019, and March 2020 VA treatment records. Further, March 2020 physical therapy records indicate that the Veteran had lumbar range of motion at 50 percent of range in all movements; this indicates that Veteran has forward flexion to 45 degrees, extension to 15 degrees, left and right lateral flexion to 15 degrees, and left and right lateral rotation to 15 degrees, for a total of 120 degrees. See March 2020 VA treatment records.

The record includes a Back Conditions Disability Benefits Questionnaire (DBQ) completed by Dr. C.B. The Board notes that, although the DBQ was initially submitted by the Veteran in September 2018, the form is undated and there is no indication when the examination was performed. In the DBQ, Dr. C.B. noted that the Veteran reported flare ups and that his initial range of motion measurements included forward flexion to 30 degrees, extension to 5 degrees, right and left lateral flexion to 10 degrees, and minimal right and left lateral rotation. Dr. C.B. noted that repetitive use testing was limited secondary to pain and that the Veteran has abnormal gait due to muscle spasm. Dr. C.B. noted that the Veteran's muscle strength, reflex, and sensory examinations were all normal, he does not have muscle atrophy, and there is no ankylosis. Dr. C.B. noted that the Veteran had intermittent, dull pain, but no paresthesias, numbness, or other objective findings due to radiculopathy. Dr. C.B. reported that the Veteran does have IVDS with incapacitating episodes of at least six weeks over the past 12 months and that he occasionally uses a cane. The doctor additionally remarked that the Veteran states that the pain and disability from flare ups cause him to stay in bed a total of 6 to 9 weeks out of the year. See Dr. C.B. DBQ.

The Board notes that the DBQ completed by Dr. C.B. and submitted in September 2018 showed vastly differing results as compared to all four VA examinations conducted in March 2011, July 2017, May 2019, and February 2020. Specifically, the range of motion measurements during each of the VA examinations, as well as those noted in March 2020 physical therapy records, support no higher than a 20 percent disability rating. Further, as discussed above, at no time during an VA examination was the Veteran found to have IVDS, nor is there any indication of such in any of the Veteran's treatment records. Dr. C.B. noted that the Veteran stated that the pain and disability from flare ups cause him to stay in bed a total of 6 to 9 weeks out of the year; however, there is no indication within the treatment records that the Veteran was prescribed bed rest at any point during the period on appeal. The Board finds that Dr. C.B.'s report, although noted to be prepared based on a review of the Veteran's record along with physical examination, is inconsistent with, and unsupported, by the record as a whole, thereby decreasing its probative value. The Board assigns higher probative value to the VA examinations of records as they are generally consistent with and supported by the medical evidence of record.

The Board acknowledges that range of motion measurements noted in the March 2011 include forward flexion to 30 degrees, which is included in the criteria for a 40 percent disability rating. Here, however, as discussed above, the overall disability picture does not otherwise more nearly approximate the criteria required for that higher 40 percent rating. The record does not support a finding that the Veteran has ankylosis. Additionally, aside from the March 2011 report and Dr. C.B.'s report, as discussed above, the Veteran's range of motion measurements throughout the period on appeal have been consistently in the range associated with a 20 percent disability rating, at most. The Board finds that the March 2011 range of motion measurement of lumbar flexion limited to 30 degrees, although noted to be prepared based on a review of the Veteran's record along with physical examination, is inconsistent with, and unsupported, by the record as a whole, thereby decreasing its probative value. The Board assigns higher probative value to the VA examinations of records as they are generally consistent with and supported by the medical evidence
ankylosis. Additionally, aside from the March 2011 report and Dr. C.B.'s report, as discussed above, the Veteran's range of motion measurements throughout the period on appeal have been consistently in the range associated with a 20 percent disability rating, at most. The Board finds that the March 2011 range of motion measurement of lumbar flexion limited to 30 degrees, although noted to be prepared based on a review of the Veteran's record along with physical examination, is inconsistent with, and unsupported, by the record as a whole, thereby decreasing its probative value. The Board assigns higher probative value to the VA examinations of records as they are generally consistent with and supported by the medical evidence of record

Consideration has been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. However, the record does not show that the Veteran has IVDS, and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. Treatment reports do not demonstrate that the Veteran has ever been prescribed bed rest for any time period sufficient to warrant the 60 percent rating under Diagnostic Code 5243 during the period under review. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.

Regarding neurological impairment, the Veteran has already been granted service connection for left lower extremity radiculopathy and the lay and medical evidence of record is against a finding that he has any other neurological abnormality associated with his lumbar spine disability.

For these reasons, the Board finds that the evidence of record is persuasively against the assignment of an initial rating in excess of 20 percent for service-connected lumbar spondylosis. As the evidence of record persuasively weighs against the assignment of a higher rating, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). The appeal is denied.

J. Ragheb

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board L. Fulmer, Associate Counsel

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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