Citation Nr: 1804361 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 10-37 133 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a rating in excess of 10 percent prior to November 9, 2012, in excess of 20 percent from November 9, 2012, to February 24, 2015, and in excess of 40 percent beginning February 25, 2015 for ankylosing spondylitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Fales, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1970 to June 1981 and from August 1981 to June 1997. He served honorably in the United States Navy. The Board thanks the Veteran for his service to our country. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. At that time, the RO increased the rating for the Veteran's service connected ankylosing spondylitis to 10 percent effective December 3, 2008, which was the date of his claim for an increased rating. Later, in August 2013 the RO increased the rating to 20 percent effective November 9, 2012 and in March 2015 the RO increased the rating to 40 percent, effective February 25, 2015. The latter two effective dates were selected based on the dates of the Veteran's VA examinations. This matter was previously before the Board in July 2014, when the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In September 2014 this matter was remanded for further development, to include a new VA examination in response to the Veteran's testimony that his condition had worsened. In September 2016 this matter was again remanded for further development, to include obtaining the Veteran's SSA records and a retrospective medical opinion to comply with Correia v. McDonald, 28 Vet. App. 158 (2016). FINDING OF FACT Prior to November 9, 2012, the Veteran's ankylosing spondylitis was manifested by forward flexion of the thoracolumbar spine to 60 degrees; from November 9, 2012 to February 25, 2015, it was manifested by forward flexion to 30 degrees; since February 25, 2015, it has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. Prior to November 9, 2012, a rating of 20 percent, but no higher, for ankylosing spondylitis is granted. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5240 (2017). 2. From November 9, 2012 to February 25, 2015, a rating of 40 percent, but no higher, for ankylosing spondylitis is granted. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5240 (2017). 3. Since February 25, 2015, a rating in excess of 40 percent for ankylosing spondylitis is denied. 38 U.S.C. §§ 1155, 5103A (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5240 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS Legal Criteria Where a veteran is seeking an increased rating for a disability one year or more after the grant of entitlement to service connection, the present level of disability is the primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The present level of disability will be judged from the time period one year before the increased rating claim was filed until VA makes a final decision on the claim. See Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). At the same time, each disability will be viewed in relation to its history. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Staged ratings, or separate ratings based on evidence showing that a veteran's disability was different at distinct times, will also be considered. See Hart, 21 Vet. App. at 510. VA assigns a percentage rating for a disability by comparing a veteran's disability against criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4, § 4.1. The Schedule is based on the average reduction in earning capacity in civilian occupations resulting from diseases and injuries associated with service in the armed forces. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If a veteran's symptoms implicate two different ratings under a single Diagnostic Code (DC) in the Schedule, then VA will assign the higher rating provided that the symptoms more closely align with the criteria for the higher rating. See 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. VA's determination about which rating to assign is also informed by a broad interpretation of the law consistent with the facts of each case and, if there is a reasonable doubt as to the degree of a veteran's disability, then the doubt will be resolved in the veteran's favor. See id. § 4.3. After VA assigns a rating, that rating may require re-evaluation in the future in keeping with changes to the veteran's condition, the law, and medical knowledge. See id. § 4.1. Pyramiding, or the process of rating the same disability under multiple DCs, is to be avoided. See id. § 4.14. However, VA may assign multiple ratings for separate and distinct symptoms so long as none of the symptoms overlap. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Further, although using symptoms from a nonservice connected disability for the purposes of rating a disability that is service connected is prohibited, if it is not possible to distinguish between the respective symptoms because they are so intertwined, then the symptoms will be attributed to the service-connected disability. See 38 C.F.R. §§ 3.102, 4.14; Mittleider v. West, 11 Vet. App. 181, 182 (1998). When determining the severity of musculoskeletal disabilities, which are at least partly rated on the basis of range of motion, VA must consider the extent of additional functional impairment a veteran may have above and beyond the limitation of motion objectively demonstrated due to pain, limited or excess movement, weakness, incoordination, and premature or excess fatigability, etc., particularly when symptoms "flare up," to include periods of prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp v. Shulkin, 29 Vet. App. 26, 31-35 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. Spine disabilities are rated pursuant to DCs 5235 through 5243. See id. § 4.71a. All applicable rating criteria are to be considered, in addition to any DCs a veteran is already rated under. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). Entitlement to a rating in excess of 10 percent prior to November 9, 2012 Here, the Veteran's rating was previously increased to 10 percent because his January 2009 VA examination showed forward flexion of the thoracolumbar spine to 80 degrees and combined range of motion of the thoracolumbar spine of 200 degrees. As to forward flexion, the examiner noted that although the Veteran's range of motion was 80 degrees, he felt pain beginning at 70 degrees. Further, the examiner opined that he could not "lift heavy objects." This is consistent with the Veteran's lay statements in his substantive appeal regarding his pain and difficulty moving grocery bags, for example. Accordingly, the Board finds that there is additional range of motion loss associated with pain on weight bearing to 60 degrees of forward flexion and an increased rating of 20 percent prior to November 9, 2012 is warranted. See DeLuca v. Brown, 8 Vet. App. 202 (1995). A 40 percent rating is not warranted because the evidence does not show forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine pursuant to 38 C.F.R. § 4.71a. Entitlement to a rating in excess of 20 percent from November 9, 2012 to February 25, 2015 Here, the Veteran's rating was previously increased to 20 percent because his November 2012 VA examination showed forward flexion of the thoracolumbar spine to 35 degrees. However, private treatment records from July 2014 note that the Veteran could not "lift more than 10 lbs on a regular basis" due to pain. Accordingly, the Board again finds that there is additional range of motion loss associated with pain on weight bearing to 30 degrees of forward flexion and an increased rating of 40 percent from November 9, 2012 to February 25, 2015 is warranted. See id. The Board notes that by increasing the Veteran's rating during this time period and the previous time period, it is recognizing how the scope of his symptoms impact his functionality under the ratings schedule. A 50 percent rating is not warranted because the evidence does not show that the Veteran has unfavorable ankylosis of the entire thoracolumbar spine pursuant to 38 C.F.R. § 4.71a. Entitlement to a rating in excess of 40 percent beginning February 25, 2015 Here, the Veteran's rating was previously increased to 40 percent because his February 2015 VA examination showed forward flexion of the thoracolumbar spine to 30 degrees due to pain with repeated use. However, a 50 percent rating is not warranted beginning February 25, 2015 because the evidence does not show that the Veteran has unfavorable ankylosis of the entire thoracolumbar spine in accordance with 38 C.F.R. § 4.71a. On the contrary, VA examinations from January 2017 and February 2015 show no ankylosis of the spine whatsoever. Where a musculoskeletal disability is evaluated at the highest rating available based on limitation of motion, a DeLuca analysis is foreclosed. See Johnston v. Brown, 10 Vet. App. 80 (1997). In reaching the above conclusions, the Board has not overlooked the Veteran's statements regarding the severity of his service connected disabilities and that a higher rating is warranted. See, e.g., August 2010 Substantive Appeal. The Board agrees that two higher ratings are warranted and has assigned the higher ratings under the pertinent DC herein. To the extent that he is arguing that his spine ratings should be even higher, the Veteran is competent to report on factual matters of which he has first-hand knowledge, such as experiencing symptoms. See Washington v. Nicholson, 19 Vet. App. 362 (2005). However, although the Board may consider the Veteran's subjective statements regarding the severity of his disabilities, and has in this case, the Board notes that with respect to the Schedule, the criteria set forth therein generally require medical expertise which the Veteran has not been shown to have, that these types of findings are not readily observable by a layperson, and that objective medical findings and opinions provided by VA examiners are afforded the greater probative weight. The probative value of medical evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the Board as adjudicator. See Guerrieri v. Brown, 4 Vet. App. 467 (1993). Here, the Board has determined that the findings and opinions provided by the VA examiner of record should be afforded the greater probative weight. Id. In sum, an increased rating of 20 percent is warranted prior to November 9, 2012 and an increased rating of 40 percent is warranted from November 9, 2012 to February 25, 2015. An increased rating is not warranted since February 25, 2015. ORDER Prior to November 9, 2012, a rating of 20 percent, but no higher, for ankylosing spondylitis is granted; from November 9, 2012 to February 25, 2015, a rating of 40 percent, but no higher, for ankylosing spondylitis is granted; beginning February 25, 2015, a rating in excess of 40 percent for ankylosing spondylitis is denied, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs