Citation Nr: 20028331 Decision Date: 04/22/20 Archive Date: 04/22/20 DOCKET NO. 18-33 998 DATE: April 22, 2020 ORDER Entitlement to an initial disability rating of 10 percent for service-connected degenerative disc disease of the thoracolumbar spine (low back disability) prior to April 23, 2011, is denied. Entitlement to a disability rating in excess of 20 percent for service-connected low back disability from April 23, 2011 to July 8, 2016, is denied Entitlement to a disability rating in excess of 50 percent for service-connected low back disability from July 8, 2016, is denied. FINDINGS OF FACT 1. From January 20, 2005 to April 23, 2011, the Veteran’s low back disability has not manifested as forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or; a combined range of motion of the thoracolumbar spine not greater than 120 degrees, or; muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or; incapacitating episodes having a total duration of at least two weeks but less than four weeks during the any 12-month period. 2. From April 23, 2011 to July 8, 2016, the Veteran’s low back disability has not manifested as forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; or, with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 3. From July 8, 2016, the Veteran’s low back disability has not manifested as unfavorable ankylosis of the entire spine; or, with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for a low back disability prior to April 23, 2011, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.40, 4.59, Diagnostic Codes 5242 and 5243. 2. The criteria for a disability rating in excess of 20 percent for a low back disability from April 23, 2011 to July 8, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.40, 4.59, Diagnostic Codes 5242 and 5243. 3. The criteria for a disability rating in excess of 50 percent for a low back disability from July 8, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.40, 4.59, Diagnostic Codes 5242 and 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1984 to July 1984 and April 1986 to November 1987. This matter is on appeal to the Board of Veterans’ Appeals (Board) stemming from a June 2005 Department of Veterans Affairs (VA) rating decision. This matter has a voluminous procedural history which the Board will summarily review. The Veteran originally filed his claim for service-connection for a low back disability in January 2005; the claim was first denied in June 2005. From January 2005 until January 2015, the Veteran’s claim for service connection came before the Board 4 times; each of the January 2008, October 2008, September 2013, and January 2015 Board remands directed the agency of original jurisdiction (AOJ) to obtain a new VA examination regarding the nature and etiology of the Veteran’s low back disability. In August 2016, the Veteran’s claim for service connection was granted; however, the Veteran appealed, arguing that he warranted an increased rating. The claim returned to the Board in July 2019, at which time the Board remanded the claim once again to obtain the Veteran’s prison medical treatment records and to obtain another VA examination. The AOJ completed the requested development and the claim returns to the Board once more. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately compensate the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31 (1999). 1. Entitlement to an initial disability rating in excess of 10 percent prior to April 23, 2011, in excess of 20 percent disabling from April 23, 2011 to July 8, 2016, and in excess of 50 percent thereafter Spine disabilities are rated pursuant to the criteria of a General Rating Formula for Diseases and Injuries of the Spine governing Diagnostic Codes 5235 to 5243, set forth in 38 C.F.R. § 4.71a. Under the General Rating Formula, a 10 percent rating is warranted for thoracolumbar spine forward flexion 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 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 rating is warranted for unfavorable ankylosis of the entire spine. It should be noted that the ratings listed above apply unless the disabilities rated under Diagnostic Code 5243 are evaluated separately under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, as set forth in 38 C.F.R. § 4.71a, Diagnostic Code 5243. Generally, in evaluating musculoskeletal disabilities, consideration must be given to additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca, 8 Vet. App. at 206. However, in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation on the particular range of motion. VA regulations require that a finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40 (functional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded); see Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991) From January 5, 2005 to April 23, 2011 The Veteran argues that his low back disability should be rated higher in excess of 10 percent for this period on appeal. After a review of all the evidence, both lay and medical, the Board finds that for the rating period from January 5, 2005 to April 23, 2011, the service-connected low back disability has not met or more nearly approximated the criteria for a higher 20 percent rating. Specifically, the Veteran has not demonstrated forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or; a combined range of motion of the thoracolumbar spine not greater than 120 degrees, or; muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis or reversed lordosis, or; incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, to include as due to tenderness, painful limitation of motion, and episodes flare ups of the thoracolumbar spine disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5243. The evidence of record reflects that the low back disability has manifested as pain, stiffness, and weakness in the lower back, and marginally limited motion during the relevant rating period; however, treatment records are silent for significant functional limitations in the thoracolumbar spine. At a December 2005 VA examination, the Veteran stated that his back pain began around 1990. The Veteran reported back pain, stiffness, and weakness. The examiner noted that the Veteran’s back flares-up when lifting objects or sitting or sleeping for extended periods; he denied wearing a back brace. The Veteran also denied incapacitating episodes and an abnormal gait. On one additional forward flexion exercise, the Veteran only exhibited mild pain, weakness, and fatigue without incoordination. The Veteran’s initial range of motion was forward flexion to 85 degrees, posterior extension to 25 degrees, with lateral flexion and rotation to 30 degrees in all directions. The Veteran reported taking ibuprofen and other pain medications, but the dosages and frequencies could not be determined. The Board notes that although the January 2008 Board remand found the December 2005 VA examination inadequate as it relates to its nexus opinion, it did not find the VA examination inaccurate as to describe the Veteran’s low back symptoms at the time of examination. A May 2008 nexus addendum opinion stated that the Veteran “walked with a perfectly normal gait.” The Veteran’s November 2008 VA examination failed to describe his low back symptoms at the time of examination; therefore, the Board finds it irrelevant to the current claim on appeal. The weight of the evidence shows that, even when considering the potential for additional functional loss during episodes of flare-ups, repetitive use, and severe pain as a basis for a higher rating, there is simply no evidence of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or; a combined range of motion of the thoracolumbar spine not greater than 120 degrees, or; muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or; incapacitating episodes having a total duration of at least two weeks but less than four weeks during the any 12-month period. Indeed, the Veteran denied walking with an abnormal gait and experiencing incapacitating episodes. In addition, his forward flexion was limited only to 85 degrees. To bolster this conclusion, the Board highlights that, although the December 2005 VA examiner did not estimate the range of motion due to flare-ups or repetitive use, the Veteran only manifested “mild pain, weakness, and fatigue without incoordination.” The Board also notes that the May 2008 addendum opinion marked the Veteran walking with a normal gait. Moreover, the December 2005 VA examiner reported generally minimal treatment—solely taking ibuprofen and not wearing a back brace—for the low back disability. Furthermore, as discussed in more detail below, the Board infers from the subsequent treatment records and VA examinations that the Veteran’s low back disability has progressed, even though estimated ranges of motion on flare-up are not in the file for this appeal period. Demonstratively, the April 2011 VA examination (discussed in the next section) found that the Veteran exhibited muscle spasms, a medical determination that was not observed in the 3 preceding VA examinations and other treatment records. This fact shows the Board that there is a clear difference in the Veteran’s disability picture between these two time periods. For these reasons, the preponderance of the evidence weighs against a finding that the low back disability more closely approximates the next higher rating of 20 percent under the General Rating Formula from January 5, 2005 to April 23, 2011. 38 C.F.R. § 4.40, 4.45, 4.59, 4.71, Diagnostic Code 5237. The appeal is denied for this period. From April 23, 2011 to July 8, 2016 The Veteran argues that his low back disability should be rated higher than 20 percent for this period on appeal. After a review of all the evidence, both lay and medical, the Board finds that for the rating period from April 23, 2011 to July 8, 2016, the service-connected low back disability has not met or more nearly approximated the criteria for a higher 40 percent rating. Specifically, the Veteran has not demonstrated unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; or, 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, Diagnostic Codes 5237, 5243. August 2013 medical records show that the Veteran walks with a “somewhat shuffled gait bilaterally,” and is unable to stand on his toes. April 2016 medical records indicate that the Veteran was seen for low back pain self-rated a 4 out of 10. At an April 2011 VA examination, the Veteran reported that his back is “stiff once in a while, otherwise fine.” The Veteran admitted intermittent discomfort—rated 2 out of 10—and with prolonged bending and lifting. The Veteran reported leg pain and some numbness; he also has some urgency or frequency of urination. The examiner noted paravertebral spasms and a range of motion of flexion to 90 degrees, extension to 15 degrees, and rotation to 15 degrees. Based on the above, the Board finds that the weight of the evidence is against finding that the Veteran’s low back disability warrants a rating in excess of 20 percent for this period. The Board notes that the April 2011 VA examination failed to show that a 40 percent rating is warranted in this case—either by showing forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; or, incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Contrarily, the April 2011 VA examination merely shows that the Veteran manifests paravertebral spasms—the only symptom noted in the entire examination supporting a 20 percent rating. Furthermore, the Veteran’s August 2013 medical records show that he walks with a “somewhat bilateral gait.” These two medical findings support a 20 percent rating, but no higher, for his low back disability. Indeed, the Veteran even described his low back symptoms as “stiff once in a while, otherwise fine” with intermittent discomfort rated 2 out of 10. Moreover, the Veteran was not noted to have any incapacitating episodes. Again, the Board interprets the Veteran’s own reports as indicating that his low back disability is somewhat mild. As such, the Board finds that this evidence weighs against a finding that the Veteran’s low back disability warrants a rating higher than 20 percent for the period from April 23, 2011, to July 8, 2016. Additionally, although the Veteran has provided competent statements describing the change in severity of his low back disability—as he self-rated his back pain to be a 2 out of 10 in April 2011 and a 4 out of 10 in April 2016—the Veteran is neither competent to provide a diagnosis of ankylosis in this case or estimate that his forward flexion is less than 30 degrees, as the issue is medically complex, as it requires specific medical knowledge and training. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Again, ankylosis was not found to be part of the Veteran’s low back disability picture until July 2016; this cuts against granting a disability rating in excess of 20 percent for this time period. For these reasons, the preponderance of the evidence weighs against a finding that the low back disability more closely approximates the next higher rating of 40 percent under the General Rating Formula from April 23, 2011 to July 8, 2016. 38 C.F.R. § 4.40, 4.45, 4.59, 4.71, Diagnostic Code 5237. The appeal is therefore denied for this time period. On and after July 8, 2016 The Veteran contends that his low back disability warrants a rating higher than 50 percent. A July 2016 VA medical opinion was obtained, based on review of the Veteran’s claims file, to include an examination conducted by a treatment provider at the Veteran’s prison. Therein, the VA examiner noted that the Veteran walked with a stooped gait and exhibited “significant pain if he has to get up from a prone or sitting position”; the Veteran rated the pain a 6 out of 10. The VA examiner reported evidence of pain on weight-bearing and the range of motion after repetitive use to be flexion to 85 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, and right lateral rotation to 0 degrees. The VA examiner also noted muscle spasming and “less movement than normal due to ankylosis, adhesions.” Unfavorable ankylosis of the entire thoracolumbar spine was noted. The examiner also marked that the Veteran had incapacitating episodes requiring bed rest of at least 4 weeks but less than 6 weeks during the past 12 months. Estimated ranges of motion during flare-ups were not indicated. The Board notes that the Board’s July 2019 decision remanded the claim as the AOJ failed its duty to assist the Veteran by obtaining the prison examination mentioned in the July 2016 VA examination. Importantly, the July 2019 decision did not find that the July 2016 VA examination inadequately or even inaccurately described the Veteran’s symptoms and the Board will not do so now. The AOJ has obtained the Veteran’s prison medical records. Contained with the records are November and December 2019 radiological reports for his cervical spine. However, as the Veteran solely appealed his low back disability rating, these radiological reports are only material to the extent they shed light on the Veteran’s low back disability. These radiological reports indicate that the Veteran is being conservatively treated for his back issue. Additionally, the Veteran’s April 2016 radiological report diagnoses the Veteran with severe degenerative disc disease. June 2017 prison medical records show that the Veteran was seen for low back pain. At a February 2020 VA examination, the Veteran reported having daily low back pain. The examiner noted that the Veteran is unable to run at all as his disease has progressed. Specifically, the Veteran was able to walk 4 to 5 miles until the day of the examination, where he could only do 4 laps around a gym. The Veteran also reported having back pain while using the stairs. Evidence of pain with weight-bearing was indicated and the Veteran was only able to perform 1 repetition out of 3. Although the Veteran reported flare-ups resulting in pain and weakness, the examiner did not estimate the additional loss of motion. Muscle atrophy of the bilateral wasting of inner muscles of the thighs was noted. No ankylosis was noted at this examination. The Veteran was found to have incapacitating episodes requiring bedrest having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Given the above, the Board finds that a disability rating in excess of 50 percent is not warranted. The Board acknowledges that the July 2016 and February 2020 VA examinations are in conflict regarding whether the Veteran has unfavorable ankylosis of the thoracolumbar spine warranting a 50 percent rating. However, as the 50 percent rating has already been assigned, the Board will not disturb it. The Board does not find that the Veteran has unfavorable ankylosis of the entire spine. Indeed, as stated above, the July 2016 VA examination solely indicated that the Veteran had unfavorable ankylosis of the entire thoracolumbar spine. No ankylosis of the cervical spine was diagnosed. Moreover, the February 2020 VA examination failed to diagnose ankylosis altogether. The lack of diagnosis of unfavorable ankylosis in the entire spine in both the July 2016 and February 2020 VA examinations is telling and does not warrant a 100 percent rating on and after July 8, 2016. Additionally, although the February 2020 VA examination described a severe low back disability—the Veteran’s inability to run anymore and having pain with the use of stairs—it does not equate to a medical diagnosis of unfavorable ankylosis of the entire spine. In other words, even though the February 2020 VA examination explained how the Veteran’s low back disability worsened from July 2016, it does not provide the requisite medical diagnosis needed to warrant a 100 percent rating. Although the Veteran’s low back disability severely impacts his functionality, the only way to obtain a 100 percent rating for a low back disability is with a diagnosis of unfavorable ankylosis of the entire spine; the medical evidence in this case simply does not meet that threshold. The Board has additionally reviewed the Veteran’s prison treatment records which likewise do not contain such a medical finding of unfavorable ankylosis of the entire spine. For these reasons, a 100 percent rating for the Veteran’s low back disability is not warranted. The Board also concludes that the Veteran has not been shown to have incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, which would warrant the higher 60 percent rating under the IVDS criteria. Both the July 2016 and February 2020 VA examinations show that he has experienced episodes lasting between 4 and 6 weeks during the past 12 months, satisfying the 40 percent criteria under the IVDS formula. Indeed, because the July 2016 VA examination found unfavorable ankylosis of the entire thoracolumbar spine, the benefit of the doubt has already been applied in the Veteran’s favor to warrant the higher 50 percent rating vis a vis the 40 percent criteria under the IVDS formula. The Board notes that neither the July 2016 nor February 2020 VA examinations estimate the Veteran’s additional loss of range of motion during a flare-up or upon weight bearing and non-weight bearing positions. Nevertheless, as a 40 percent evaluation is the maximum evaluation for limitation of motion of the thoracolumbar spine—and the Veteran is currently rated at the higher 50 percent—consideration of these estimates does not factor into the Board’s decision for a higher rating. Johnston v. Brown, 10 Vet. App. 80 (1997). The examiners’ failure to include these estimates is therefore moot. Finally, when evaluating the extent of the Veteran’s back disability, the Board is required to consider whether a separate evaluation is warranted for any associated neurological abnormality including, but not limited to, bowel or bladder impairment, neurological impairment in the extremities, or other such disorders, which are to be evaluated under the appropriate diagnostic code. See 38 C.F.R. § 4.71(a). Here, although the December 2005 VA examiner suspected radiculopathy and the Veteran reports dull intermittent pain and numbness, the July 2016 and February 2020 VA examiners explicitly found that the Veteran did not meet the diagnosis of radiculopathy. Additionally, even though the Veteran has been noted to have a urinary retention disability, such has not been shown to be related to his low back disability. Rather, April 2016 surgical notes indicate that his bladder impairment disability was related to a “thoracic epidural abscess.” Therefore, consideration of separate ratings for neurological disabilities is not warranted. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Finelli, 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.