Citation Nr: 20003571 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 16-03 894 DATE: January 16, 2020 ORDER Entitlement to a disability rating higher than 20 percent for a service-connected low back disability (lumbar strain and arthritis) is denied. FINDING OF FACT Throughout the period on appeal, the preponderance of the evidence indicates that the Veteran’s low back disability is not manifested by forward flexion of his thoracolumbar spine limited to 30 degrees or less, favorable ankylosis of his entire thoracolumbar spine, or incapacitating episodes of intervertebral disc syndrome (IVDS) having a total duration of at least 4 weeks but less than 6 weeks during the preceding 12 months. CONCLUSION OF LAW The criteria are not met for a disability rating higher than 20 percent for the low back disability (lumbar strain and arthritis). 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1949 to July 1972. In May 2018 correspondence, the Veteran requested a hearing before a Member (Veterans Law Judge (VLJ)) of the Board. However, the Veteran later withdrew that hearing request in August 2019. 38 C.F.R. § 20.704(e) (2017). Also in August 2019, the Board remanded the claim for further development – including for a VA examination reassessing the severity of this service-connected disability and, in so doing, addressing the extent of functional impairment owing to it. That development directed to occur on remand since has been accomplished, including based on the results of the additional VA examination the Veteran had on remand in October 2019. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Indeed, partly based on the results of that VA contract examination, in November 2019 the local regional office (RO) increased the rating for the Veteran’s low back disability from 10 to 20 percent retroactively effective from September 2, 2014, so back to the same date as the prior rating. Since not the maximum possible rating, however, the RO correctly concluded that the increase in rating was a partial (not full) grant of the benefit being requested and, therefore, did not abrogate the pending appeal. But this appeal now concerns whether the Veteran is entitled to an even higher rating, meaning a rating even greater than 20 percent. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Entitlement to a rating higher than 20 percent for the service-connected low back disability (lumbar strain and arthritis) Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. 38 C.F.R. § 4.10. When evaluating the severity of a disability, it is essential that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But if the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged” ratings and is employed for initial or established ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s low back disability is rated under 38 C.F.R. § 4.71a, Code 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, 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, DCs 5235-5242. 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). For VA 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. 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 lateral rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id., at Note (2). 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).   In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. During the pendency of this appeal, the principal medical evidence material to the claim is contained in the reports of VA spine examinations in April 2015 and October 2019 as well as an intervening September 2015 supplemental medical opinion. The remainder of the medical treatment records contain no evidence materially inconsistent with the findings of those examinations as they relate to the status of the Veteran’s service-connected low back disability. As reflected in each of the above-cited VA examination reports, the Veteran does not have symptoms that include forward flexion of his thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of his entire thoracolumbar spine. Throughout the period on appeal, his forward flexion of his thoracolumbar spine has been less restricted; his forward flexion has been to 40 degrees or more. During the April 2015 VA examination, the Veteran exhibited forward flexion of 90 degrees or greater, extension to 30 degrees or greater, right and left lateral flexion to 30 degrees or greater, and right and lateral rotation to 30 degrees or greater. This is a combined range of motion of 270 degrees or greater. There was no additional loss in function or range of motion after repetitive use testing. The Veteran did have muscle spasm and guarding, however, neither resulted in an abnormal gait or abnormal spinal contour. Finally, there was no ankylosis present. The Veteran reported flare-ups that occurred 3-4 times a year and lasted 5-6 days, during which time he would experience pain and weakness resulting in a loss of 80 percent of range of motion in flexion, extension, and rotation. However, the examiner could not provide the range of motion during flare-ups without speculating. It primarily was because of that inability to comment on the extent of functional impairment during a flare up, that is, without speculating, that the Board determined in August 2019 that this claim needed to be remanded. The Veteran consequently underwent an additional VA examination in October 2019, on remand. During this additional examination, the Veteran reported weekly mild-to-moderate flare-ups, which are precipitated by activity, the weather, and daily tasks, and alleviated with rest. He had forward flexion to 80 degrees, extension to 15 degrees, right lateral flexion to 10 degrees, left lateral flexion to 20 degrees, and right and left lateral rotation to 25 degrees each. This is a combined range of motion of 175 degrees in his thoracolumbar spine. The examiner clarified that the Veteran experienced pain with repeated use over time and flare-ups, with estimated range of motion of forward flexion to 40 degrees, extension to 10 degrees, right lateral flexion to 5 degrees, left lateral flexion to 10 degrees, and right and left lateral rotation to 15 degrees each. This is a combined range of motion of 95 degrees in his thoracolumbar spine. Additionally, there was no muscle guarding, spasm, or ankylosis present at that examination. Both VA examinations confirmed the Veteran did not have favorable ankylosis of his entire thoracolumbar spine or entire spine, the latter when additionally considering the adjacent cervical segment of his spine. His spine was not fixed in flexion or extension, so not ankylosed, either favorably or unfavorably. 38 C.F.R. § 4.71a, DCs 5235-5242, Note (5). Furthermore, there is no evidence of record indicating he has other symptomatology and consequent functional impairment warranting a higher disability evaluation. Based on the results of that examination most recent examination and other relevant medical and lay evidence in the file, the Board finds that the preponderance of this evidence is against a rating exceeding 20 percent for the Veteran’s low back disability. The Board acknowledges his lay reports of symptoms and that there was functional loss due to pain, repetitive use, and during flare-ups. However, even considering his lay reports of these symptoms and noted functional loss, the degree of additional limitation reflected by his statements of constant pain, especially on forward flexion, and stiffness does not result in limitation of motion more nearly approximating forward flexion limited to 30 degrees or less. At worst, so even considering his pain, his forward flexion is to at least 40 degrees, so beyond the terminal point permitted for a rating higher than 20 percent.   Ultimately, even when considering the extent of his pain and its unfortunate consequent effect on his range of motion, the Veteran still does not have sufficient limitation of motion to warrant granting a higher rating for his low back disability. This is true despite the several evaluations he has had and even after remanding his claim for comment specifically addressing his functional impairment during a flare up or owing to the several symptoms, including pain, he has described. In Mitchell v. Shinseki, 24 Vet. App. 32, 33, 43 (2011), the Court held that, although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. Id. The Court explained in Mitchell explained that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (§ 4.45 ). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Consequently, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). As such, the Board finds that the preponderance of the evidence is against finding that the Veteran has forward flexion of the thoracolumbar spine limited to the required 30 degrees or less or favorable ankylosis of his entire thoracolumbar spine. Therefore, a higher evaluation of 40 percent under the General Rating Formula is not warranted. The Board also has considered whether a higher evaluation is warranted under DC 5243 for IVDS based on incapacitating episodes. See 38 C.F.R. § 4.71a. IVDS may be evaluated under the General Rating Formula or under the IVDS Formula, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, General Rating Formula, Note (6). Under the IVDS Formula, a 40 percent disability rating is the next higher rating that is provided for IVDS based on incapacitating episodes. A 40 percent disability rating is assigned for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243, Note (1). In this case, however, there is no suggestion of physician-prescribed bedrest; therefore, by definition, the Veteran has not experienced an incapacitating episode. See, e.g., April 2015 and October 2019 VA Examinations. If he has elected to rest in bed, then that is not tantamount to an incapacitating episode, much less of the required frequency and total duration of at least 4 weeks but less than 6 weeks during the past 12 months to warrant granting a higher rating under the IVDS Formula criteria. As well, the Board has considered whether the Veteran has any associated objective neurological abnormalities owing to his service-connected low back disability deserving of a separate rating, so additional compensation. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). VA treatment records do not, however, show that he has any neurological abnormalities associated with his low back disability – such as radiculopathy or sciatic neuropathy affecting his lower extremities. Notably, he has made no report, and review of the electronic file reveals no evidence, of any objective neurologic abnormalities associated with his low back disability. As such, there is no evidence of record to warrant any separate disability ratings on this basis. Lastly, in adjudicating this claim, the competence and credibility of the Veteran must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). He is competent to give evidence about what he observes or experiences. For example, he is competent to report that he experiences certain symptoms, such as pain, and he is credible in this regard. See Layno v. Brown, 6 Vet. App. 465 (1994). His credible belief that his disability is worse than contemplated by the assigned rating, however, is outweighed by the competent and credible medical examinations that evaluated the extent of his impairment based on objective data, in relation to the applicable rating criteria, and coupled with consideration of his lay complaints regarding his symptoms, their severity, and how they impact his life and daily activities. The VA examiners have the training, expertise, and credentials necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with the Veteran’s complaints. Consequently, greater probative weight is placed on the physical examination findings, and the rating criteria are specific in indicating that some of the criteria must be objectively demonstrated. For these reasons and bases, the preponderance of the evidence is against the Veteran’s claim for a rating higher than 20 percent for his low back disability. In making this determination, the Board notes that neither he nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Mukherjee 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.