Citation Nr: 1752847	
Decision Date: 11/16/17    Archive Date: 11/22/17

DOCKET NO.  12-15 402	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


THE ISSUES

1.  Entitlement to an increased disability rating in excess of 20 percent for service-connected degenerative arthritis of the lumbar spine.  

2.  Entitlement to an increased disability rating in excess of 20 percent for service-connected status post-surgery, left ankle, with degenerative joint disease.


REPRESENTATION

Appellant represented by:	New Jersey Department of Military and Veterans' Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Robert Batten, Associate Counsel


INTRODUCTION

The Veteran had active duty service from April 1988 to August 1998.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania and Baltimore, Maryland.

In March 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record.  

The Board previously remanded this matter in May 2016 and July 2017 decision for further development. The Board finds there has been substantial compliance with the remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.)  

Following the Board's May 2016 remand, the AOJ in a January 2017 rating decision increased the evaluation assigned the Veteran's lumbar spine disability to 20 percent effective from March 18, 2008, and granted service connection for radiculopathy of the bilateral lower extremities.  Entitlement to a total rating based on individual unemployability had already been established effective from November 18, 2010.


FINDINGS OF FACT

1. The Veteran's lumbar spine has a forward flexion of 40 degrees and no ankylosis.

2. The Veteran's left ankle has marked limited motion and no ankylosis.


CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 20 percent for degenerative arthritis of the lumbar spine have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.40, 4.45, 4.71a, Diagnostic Codes 5242, 5243 (2017).

2. The criteria for a disability rating in excess of 20 percent for post-surgery, left ankle, with degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5071 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

II. Increased Rating Generally

VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. See 38 U.S.C.A. § 1155 (2012); 38 C.F.R. § 3.321 (2017); see generally, 38 C.F.R. § Part 4 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10 (2017). The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1 (2017). 

Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. See 38 C.F.R. § 4.7 (2017). Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3 (2015). The schedule recognizes that disability from distinct injuries or diseases may overlap. See 38 C.F.R. § 4.14 (2017). However, the evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. Id. 

The rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations, to the extent they are sufficient to warrant changes in evaluation based on the applicable rating criteria. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). For increased-rating claims, where a claimant seeks a higher evaluation for a previously service-connected disability, it is the present level of disability that is of primary concern, and VA considers the level of disability for the period beginning one year prior to the claim for a higher rating. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); see also 38 U.S.C.A. § 5110 (b)(2) (2012); 38 C.F.R. § 3.400 (o)(2) (2017). 

A claimant is entitled to the benefit-of-the-doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107 (2012); 38 C.F.R. 3.102 (2017) (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. See 38 C.F.R. § 4.40 (2017); see Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) (holding that pain "must actually affect some aspect of 'the normal working movements of the body' [under] 38 C.F.R. § 4.40 in order to constitute functional loss" warranting a higher rating). With respect to disabilities of the joints, consideration is given as to whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. See 38 C.F.R. § 4.45 (2017). 

Sections 4.40 and 4.45 of the regulations thus require a determination of whether a higher rating may be assigned based on additional functional loss as a result of the above factors, including on repeated use and during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. See DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995) (holding that the provisions of 4.40 and 4.45 are not subsumed by the Diagnostic Code's (DC's) applicable to the affected joint). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable DCs pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (holding that because the maximum rating available under the diagnostic code pertaining to limitation of motion of the wrist had already been assigned, remand was not warranted for consideration of functional loss due to pain under § 4.40).

The United States Court of Appeals for Veterans Claims (the Court) has held that "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of" 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). The referenced portion of 38 C.F.R. § 4.59 (2017) states that "[t]he 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."

III. Lumbar Spine

The Veteran's lumbar spine is currently rated under DC 5242-5237 rated at 20 percent disabling, effective March 2008.

Specific to disabilities of the spine, the current rating schedule provides for the evaluation of all spine disabilities under a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (DC 5243). See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2017). Service connection has not been established for IVDS.

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (2) (2017). Under the General Rating Formula:

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

A 50 percent evaluation is assigned for: unfavorable ankylosis of the entire thoracolumbar spine. 

A 100 percent evaluation is assigned for: unfavorable ankylosis of the entire spine is demonstrated. Id.

In short, the only way the Veteran could get higher than 20 percent for limitation of motion of the lumbar spine under the general rating formula, is if the medical evidence showed the Veteran's forward flexion is less than 30 degrees or if the Veteran was diagnosed with ankylosis. 

None of the medical evidence of record establishes a forward flexion of less than 30 degrees or ankylosis. 

The Veteran underwent a VA examination in August 2010. The examiner found that the Veteran had an active range of motions for forward flexion of 80 degrees with pain from 60 to 80 degrees of his lumbar spine. The examiner did not note whether the Veteran was diagnosed with ankylosis of the lumbar spine.

In June 2016, the Veteran underwent another lumbar VA examination. The examiner found that the Veteran's initial range of motion for forward flexion was 50 degrees. The examiner noted that the Veteran exhibited pain on forward flexion and there was evidence of pain with weight bearing. The examiner found no additional loss of function or range of motion after three repetitions of the range of motion examination. The examiner did not find ankylosis. 

In August 2017, the Veteran underwent another VA examination. The examiner found that the Veteran's initial range of motion for forward flexion was 40 degrees. The examiner noted pain that caused function loss on forward flexion. The examiner found no additional loss of range of motion after three repetitions. The examiner found no evidence of pain on weight bearing. The examiner performed examination in compliance with Correia. The examiner found that testing passive rate of motion could not be performed or was not medically appropriate. The examiner found there was pain when the join was used in non-weight bearing. But the examiner found that there was no opposing joint to determine if it was undamaged. The examiner found that there was no ankylosis of the spine. In the examination the Veteran did not report flare-ups. The Veteran stated that his function loss was limitations with bending, prolonged standing, and walking.

During the pendency of the appeal, the principal medical evidence material to the claim is contained in the reports of VA spine examinations in August 2010, June 2016, and August 2017. The remainder of the medical treatment records contains no evidence materially inconsistent with the findings of those examinations as they relate to the condition of the Veteran's service-connected degenerative joint disease of the lumbar spine.  

It is noted that the Veteran asserts that he is entitled to an increased rating for his lumbar spine disability. His factual recitation as to symptomatology associated with the lumbar spine is accepted as true. However, as a layperson, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as the present severity of his lumbar spine disability, and his assertions are far outweighed by the detailed opinions provided by the medical professionals who examined the Veteran's lumbar spine and discussed all relevant details for purposes of rating his disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board has considered the Veteran's statements as to his functional impairment and finds that the impairment has been considered by the 20 percent rating assigned for the lumbar spine based on severe limitation of motion.

The Board finds that the Veteran's lumbar spine does not limit his forward flexion to less than 30 degrees. The Board also finds that the Veteran does not have ankylosis. Therefore, the Board finds that a rating higher than 20 percent for the lumbar spine disability is not warranted. There are no objective medical findings that would support the assignment of a higher rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007). As the preponderance of the evidence is against any higher rating, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Further, there are no separate associated neurological abnormalities that would warrant additional separate ratings other than those for which service connection has already been established such as bilateral lower extremity radiculopathy, which is not currently on appeal.

IV. Left Ankle

The Veteran's left ankle is currently rated under DC 5010-5271 rated at 20 percent disabling, effective March 2008. The Board notes that the Veteran's 20 percent rating is the highest disability rating under DC 5271. If a veteran is receiving the maximum disability rating allowable for a particular disorder, the Board does not have to consider whether he is entitled to a higher disability rating because of functional loss under §§ 4.40 and 4.45. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85  (1997). Moreover, in Johnston, the Court indicated that where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, the cited regulations are not for application. See Johnston, 10 Vet. App. at 84-85 (although the Secretary suggested remand because of the Board's failure to consider functional loss due to pain, remand was not appropriate because higher schedular rating required ankylosis). In addition, the Veteran did not indicate that he had flare ups in his August 2017 examination. Thus, to the extent that consideration of flare-ups is relevant in this case, there is no indication that they caused a degree of additional limitation that would warrant a higher or separate rating under any potentially applicable diagnostic code.

A higher rating for an ankle disability is possible under DC 5270 for ankylosis of the ankle. Therefore, the Board has also considered whether 5270 is applicable to the Veteran's case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."). 

The Veteran had VA left ankle examinations in August 2010, June 2016, and August 2017. The August 2017 examination was compliant with Correia. The August 2010 examination did not address whether the Veteran had ankylosis. The June 2016 and August 2017 examinations found that the Veteran did not have ankylosis in his left ankle. Therefore, DC 5270 is not applicable in this case. 

As the Veteran is receiving the maximum rating for limitation of motion of a single joint, and there is no evidence reflecting that there is ankylosis of his ankle, there is no higher rating warranted under any other potentially applicable diagnostic code, an increased rating for left ankle disability, currently rated 20 percent, is not warranted. As the preponderance of the evidence is against any higher or separate rating, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. 

V. Extraschedular Considerations

The Board has also considered whether referral of the Veteran's claims for consideration of an extraschedular evaluation is warranted. 38 C.F.R. §3.321 (b)(1). Extraschedular consideration involves a three-step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe the disability level and symptomatology. If the schedular rating criteria reasonably describe the disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. If the schedular rating criteria do not reasonably describe a Veteran's level of disability and symptomatology, a determination must be made as to whether there is an exceptional disability picture that includes other related factors, such as marked interference with employment and frequent periods of hospitalization. If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization is found, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for consideration of an extraschedular rating.

Here, the Veteran's left ankle and back disabilities are manifested by reports of pain, swelling, reduced range of motion, bending or walking and standing for prolonged periods of time. Such manifestations and related impairment are fully contemplated by criteria for the schedular rating currently assigned. Significantly for the Veteran's ankle, schedular criteria (in Code 5270, outlined above) provide for higher ratings, but the criteria for the higher ratings are not met since the Veteran does not have ankylosis of his left ankle. Similarly, the schedular rating for the Veteran's lumbar spine (5237) provide for higher ratings, but the criteria for the ratings are not met since the Veteran does not have greater limitation of motion required for a higher rating or ankylosis of his lumbar spine. There is nothing exceptional or unusual about the Veteran's left ankle and lumbar spine disability. Thun, 22 Vet. App. at 115. The schedular criteria are not shown to be inadequate, and referral for consideration of an extraschedular rating is not warranted.



ORDER

A disability rating in excess of 20 percent for a lumbar spine disability is denied.

A disability rating in excess of 20 percent for a left ankle disability is denied.  




S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs