Citation Nr: 20022092 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 16-40 832A DATE: March 30, 2020 ORDER Entitlement to a disability rating in excess of 20 percent for a back disability is denied. Entitlement to an initial rating in excess of 10 percent for painful scar (scar one) associated with status post herniated nucleus pulposus L5-S1 with laminectomy and discectomy (sometimes called the “painful scar”) is denied. Entitlement to an initial compensable rating for scars associated with status post herniated nucleus pulposus (scar two - the other scar associated with the back, sometimes called the “nonpainful scar”) L5-S1 with laminectomy and discectomy is denied. FINDINGS OF FACT 1. During the pendency of the claim, the preponderance of the evidence shows that the Veteran’s back disability is not manifested by limitation of flexion to 30 degrees or less; ankylosis of the entire thoracolumbar spine; or incapacitating episodes of IVDS that required bed rest prescribed by a physician and treatment by a physician having a total duration of at least 6 weeks during a 12-month period. 2. During the pendency of the claim, the preponderance of the evidence does not show that the Veteran’s painful scars number greater than two; involve the head, face, or neck; are nonlinear; are unstable; or have any disabling effects not considered in diagnostic codes 7800-04. 3. During the pendency of the claim, the preponderance of the evidence does not show that the Veteran’s service-connected non-painful scars involve the head, face, or neck; are nonlinear; are painful or unstable; or have any disabling effects not considered in diagnostic codes 7800-04. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating in excess of 20 percent for a back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5237-5243. 2. The criteria for a compensable rating for a service-connected painful scars have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.118, DCs 7801 to 7805. 3. The criteria for a compensable rating for a service-connected scars have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.118, DCs 7801 to 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1991 to March 1995. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a February 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Board remanded these matters for additional development. They have returned to the Board for further appellate review. In this regard, the Board must note that in December 2018 the Board granted TDIU. The issues above were remanded by another Veterans Law Judge. The issues were cited as follows: (1) Entitlement to an increased rating for status post herniated nucleus pulposus L5-S1 with laminectomy and discectomy, currently evaluated as 20 percent disabling; (2) Entitlement to an initial rating in excess of 10 percent for painful scars associated with status post herniated nucleus pulposus L5-S1 with laminectomy and discectomy; and (3) Entitlement to an initial compensable rating for scars associated with status post herniated nucleus pulposus L5-S1 with laminectomy. It appears that issues (2) & (3) are, generally speaking, the same issue, scars on the back (three of them, two painful and one not). The Board must address this issue. Increased Ratings 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). Separate higher or lower compensable 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 Hart v. Mansfield, 21 Vet. App. 505 (2007); 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. The assignment of a particular diagnostic code to evaluate a disability is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the diagnosis, and demonstrated symptomatology. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis). Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. § § 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton, 25 Vet. App. at 5. Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the “pain must affect some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance,” as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while “pain may cause a functional loss, pain itself does not constitute a functional loss,” and, is therefore, not grounds for entitlement to a higher disability rating). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Entitlement to a disability rating in excess of 20 percent for a service-connected back disability. The Veteran contends that he is entitled to an initial disability rating higher than 20 percent for his service-connected back disability. The regulations provide for evaluation of disabilities of the spine under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or intervertebral disc syndrome (IVDS) may alternatively be rated under the Formula for Rating Intervertebral Disc Syndrome 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. 38 C.F.R. § 4.71a, Note (6). The Veteran’s service-connected back disability is currently rated as 20 percent disabling under Diagnostic Codes 5243 (intervertebral disc syndrome) effective August 28, 2006. The Veteran is also service connected for bilateral lower extremity radiculopathy (sciatic and femoral) secondary to his back disability. The Veteran was awarded a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities on an extraschedular basis effective April 4, 2013. The General Rating Formula for Diseases and Injuries of the Spine provides a 20 percent disability rating is assigned 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. Important for this case, a 40 percent rating is warranted where there is forward flexion of the thoracolumbar spine of 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A higher 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. In addition, any associated objective neurologic abnormalities are evaluated separately under the appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note 1. For VA compensation purposes, 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 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. 38 C.F.R. § 4.71a, General Rating Formula, Note 2; see also Plate V. Alternatively, intervertebral disc disease can be evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes. Under that Formula, a 10 percent rating is assigned where intervertebral disc syndrome is manifested by incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted where incapacitating episodes have a total duration of at least two weeks but less than 4 weeks during the past 12 months. A rating of 40 percent is warranted where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A maximum rating of 60 percent is warranted where the evidence reveals incapacitating episodes having a total duration of at least six weeks during the past 12 months. Incapacitating episodes are defined as requiring bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, IVDS Formula. The Veteran was provided a VA examination for back conditions in January 2019. Examination revealed forward flexion to 90 degrees with pain at 70 degrees; extension to 5 degrees with pain at 15 degrees; right lateral rotation to 30 degrees and pain at 25 degrees; left lateral rotation to 30 degrees with pain at 20 degrees; and right and left lateral flexion to 30 degrees with pain at 20 degrees. Pain was noted on all ranges of motion, rest/non-movement, weightbearing, and palpation (mild tenderness along spine). The examiner did not find additional loss of function or range of motion after three repetitions. The examiner was unable to say without speculation whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over a period of time. The examiner was unable to say without speculation whether pain, weakness, fatigability, or incoordination significantly limit functional ability with flare-ups. The examiner found that the Veteran has muscle spasms that result in abnormal gait or abnormal spine contour. The examiner also found the following additional factors contributing to disability: disturbance of locomotion, interference with sitting, and interference with standing. The examiner found normal muscle strength, no muscle atrophy, and normal reflexes. The examiner found mild radiculopathy in the Veteran’s right and left lower extremities. There was no evidence of ankylosis of the spine or other neurological abnormalities. The Veteran was found to have IVDS, but no episodes of acute signs or symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months were reported. The examiner found that the Veteran’s back condition impacts his ability to work. The Veteran obtained a private examination for back conditions in October 2014. Examination revealed forward flexion to 80 degrees with pain at 30 degrees; extension to 10 degrees with pain at 5 degrees; right and left lateral rotation to 10 degrees and pain at 5 degrees; and right and left lateral flexion to 10 degrees with pain at 5 degrees. The examiner found that the Veteran was unable to perform repetitive-use testing due to pain. The examiner found that the Veteran had functional loss and/or functional impairment of the thoracolumbar spine due to less movement than normal; pain on movement; deformity; disturbance of locomotion; and interference with sitting, standing and/or weight-bearing. The examiner found tenderness to palpation and abnormal gait due to guarding or muscle spasm. The examiner found normal muscle strength and no muscle atrophy. The examiner found hypoactive deep tendon reflexes and normal sensation to light touch. The examiner found moderate radiculopathy in the Veteran’s left lower extremities and severe radiculopathy in the right lower extremities. The examiner did not find any other neurological abnormalities or findings related to his back condition. The examiner did not find that the Veteran has IVDS of the thoracolumbar spine. The examiner found that the Veteran’s back condition impacts his ability to work. The Veteran was provided a VA examination for back conditions in July 2013. Examination revealed forward flexion to 40 degrees with pain at 20 degrees; extension to 25 degrees with pain at 25 degrees; right and left lateral rotation to 20 degrees and pain at 20 degrees; and right and left lateral flexion to 20 degrees with pain at 20 degrees. The examiner did not find additional limitations in range of motion upon repetitive-use testing. The examiner found that the Veteran had functional loss and/or functional impairment of the thoracolumbar spine due to less movement than normal; weakened movement; pain on movement; instability of station; disturbance of locomotion; and interference with sitting, standing and/or weight-bearing. The examiner did not find localized tenderness or pain to palpation; muscle spasm; or guarding. The examiner did not find evidence of muscle atrophy. The examiner found hypoactive deep tendon reflexes and decreased sensation to light touch. The examiner found moderate radiculopathy in the Veteran’s bilateral lower extremities. The examiner did not find any other neurologic abnormalities or findings related to his back condition. The examiner diagnosed the Veteran with IVDS and the Veteran reported at least six weeks of incapacitating episodes over the past 12 months. The examiner found that the Veteran’s back condition impacts his ability to work. The Board notes that the Veteran has been diagnosed with IVDS. However, the evidence does not show incapacitating episodes requiring bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, IVDS Formula. The Board acknowledges that the July 2013 VA examination shows that the Veteran reported at least 6 weeks of incapacitating episodes of intervertebral disc syndrome over the past 12 months. However, there is no medical evidence of record indicating that the Veteran’s claimed incapacitating episodes required bed rest prescribed by a physician and treatment by a physician. The Board notes that the Veteran has not provided any additional statements claiming prescribed bed rest for incapacitating episodes. Nor did the subsequent January 2019 VA examination and the October 2014 private examination include reports of incapacitating episodes of ICDS requiring bed rest prescribed by a physician and treatment by a physician. As discussed above, a rating of 40 percent requires physician-prescribed bed rest or incapacitating episodes as defined by VA regulation, lasting a total of at least six weeks during any given 12-month period. Accordingly, the Board finds that the Veteran is not entitled to higher disability ratings based upon incapacitating episodes at any time throughout the period on appeal. As the Veteran is not entitled to increased ratings based upon incapacitating episodes, it is necessary to determine whether he is entitled to higher ratings under the General Rating Formula. To warrant a 40 percent rating for a back disability under the General Rating Formula, there must be evidence of limitation of flexion to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. The record is negative for a diagnosis of ankylosis. In the January 2019 VA examination, it was opined that the Veteran did not have ankylosis and this medical opinion is not contradicted by any other medical evidence of record. The record is also negative for evidence of flexion to 30 degrees or less. The January 2019 VA examination revealed forward flexion to 90 degrees with pain at 70 degrees. The October 2014 private examination revealed forward flexion to 80 degrees with pain at 30 degrees. The July 2013 VA examination revealed forward flexion to 40 degrees with pain at 20 degrees. The Board acknowledges that the Veteran experiences pain on motion and was found to have functional impairment of the thoracolumbar spine due to less movement than normal; weakened movement; pain on movement; instability of station; disturbance of locomotion; and interference with sitting, standing and/or weight-bearing. However, the preponderance of the evidence does not show that pain, weakness, fatigue, muscle spasms, or incoordination cause further functional loss that more nearly approximates forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § § 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. at 202 (1995); Burton, 25 Vet. App. at 5. Mitchell, 25 Vet. App. at 32. Therefore, the Board finds that the Veteran does not meet the criteria for a rating in excess of 20 percent for his back disability during the pendency of the claim. The Board has also considered separate evaluations for neurological manifestations of the Veteran’s service-connected lumbar disability. As noted, the Veteran is already in receipt of four separate ratings for radiculopathy of the right and left lower extremities. The evidence does not show that the Veteran has any other neurological abnormalities associated with the service-connected lumbar spine disability for which he is not already service connected. The Board acknowledges the Veteran’s belief that his symptoms are of such severity as to warrant a higher rating for his back disability. In this case, the Veteran is competent to report symptoms because that requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Disability ratings are made by the application of a rating schedule which is based on average impairment of earning capacity as determined by the clinical evidence of record. Such competent evidence concerning the nature and extent of the Veteran’s back condition has been provided by the medical personnel who have examined the Veteran during the current appeal and who have rendered pertinent opinions in conjunction with the examinations. The medical findings as provided in the examination reports directly address the criteria under which disability due to a back condition is rated. However, even considering the Veteran’s credible statements regarding the impact of his back condition, the findings of the examinations do not support the assignment of higher ratings or additional separate ratings. Therefore, the Board finds the examination reports to be more probative than the Veteran’s subjective evidence of complaints regarding the severity of symptomatology because they provide objective medical evidence of the manifestations of the service-connected disabilities. Cartright v. Derwinski, 2 Vet. App. 24 (1991). Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating higher than 20 percent for the Veteran’s service-connected back disability and the claim must be denied. This finding does not suggest that the Veteran does not have severe back problems, simply the nature and extent of the problem is within the 20 percent evaluation based on the criteria, nothing more. A 20% back disability will cause the Veteran many problems. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations (2016) have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Entitlement to increased disability ratings for painful and non-painful scars. The Veteran’s service-connected non-painful scars are currently rated as noncompensable under DC 7805. 38 C.F.R. § 4.118. The Veteran’s service-connected painful scars are currently rated under DC 7804. Id. Amendments to the criteria for rating disabilities of the skin were published in July 2018. See Schedule for Rating Disabilities: Skin, 83 Fed. Reg. 32,592 (July 13, 2018). The amendments were made effective as of August 13, 2018, and apply to claims, such as the Veteran's, that were pending before VA as of that date, with the provision that the more favorable of the old and new criteria are to be applied. Diagnostic Codes 7801-7804 (before and after the 2018 amendments) provide compensable ratings for scars that are deep (as opposed to superficial) affecting areas of at least 6 square inches (39 square centimeters); for superficial scars affecting areas greater than 144 square inches (929 square centimeters); and for scars that are painful or unstable. Under Diagnostic Code 7805, which was substantively unchanged by the 2018 amendments (at least as they apply to the Veteran's case), any disabling effects of scars not considered in a rating under Diagnostic Codes 7800-7804 are to be evaluated under an appropriate diagnostic code for any disabling effects. The Veteran was provided a VA examination for scars in July 2013. The Veteran reported that his scars were from procedures related to his back disability, including a laminectomy and discectomy in 1994; fusion in 2005; and neurostimulator placements in 2012 and 2013. The examiner identified three linear scars on the Veteran’s posterior truck that measured 12 by 0.2 cm, 6 by 0.2 cm, and 5 by 0.2 cm. Two of these scars were identified as painful and the Veteran associated them with the stimulator placements. None of the Veterans scars were found to be unstable; the result of burns; or non-linear. None of the Veteran’s scars were found to be on the Veteran’s head, face, or neck. None of the Veteran’s scars were found to result in limitation of function. None of the Veteran’s scars were found to impact the Veteran’s ability to work. The evidence provided in the July 2013 VA examination is not contradicted by any other medical or lay evidence of record. As none of the Veteran’s scars were found to be the result of burns; on the head, face, or neck; non-linear; or result in limitation of function; increased ratings under DCs 7800, 7801, 7802, or 7805 are not warranted. As to the Veteran’s non-painful scars, a rating under DC 7804 is not warranted as they are neither painful nor unstable. As to the Veteran’s two painful scars, a rating in excess of 10 percent under DC 7804 is not warranted as the Veteran was only found to have two painful scars and neither are unstable. Under DC 7804, a 20 percent rating is available for three or four scars that are unstable or painful or one scar that is unstable and painful. Accordingly, the Board finds that the preponderance of the evidence shows that the Veteran’s non-painful scars do not meet the criteria for a compensable rating and the Veteran’s painful scars do not meet the criteria for a rating in excess of 10 percent. See 38 C.F.R. § 4.118; Fenderson, supra. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Neither the Veteran nor his representative has identified any other rating criteria that would provide higher ratings or additional ratings. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations (2016) have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. E. VanValkenburg, 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.