Citation Nr: 20032296 Decision Date: 05/07/20 Archive Date: 05/07/20 DOCKET NO. 13-17 555 DATE: May 7, 2020 ORDER Entitlement to a disability rating in excess of 10 percent prior to January 29, 2013, in excess of 20 percent from January 29, 2013 to October 11, 2019 and in excess of 60 percent thereafter for a service-connected back condition is denied. FINDINGS OF FACT 1. Prior to January 29, 2013, the Veteran’s the Veteran’s back condition did not reflect a forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 2. Prior to October 11, 2019, the Veteran’s back condition did not reflect a forward flexion of the cervical spine is 15 degrees or less; or, favorable ankylosis of the entire cervical spine; or 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. 3. After October 11, 2019, the Veteran’s back condition did not reflect unfavorable ankylosis of the entire spine. CONCLUSIONS OF LAW 1. The criteria for an increased rating, in excess of 10 percent prior to January 29, 2013 for the Veteran’s back condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 2. The criteria for an increased rating, in excess of 20 percent from January 29, 2013 to October 11, 2019, for the Veteran’s back condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 3. The criteria for an increased rating, in excess of 60 percent after October 11, 2019, for the Veteran’s back condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1984 to October 1990. This matter was previously before the Board in January 2018, at which time it was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) for further development. The RO most recently readjudicated the appeal in a February 2020 supplemental statement of the case. At a December 2016 hearing, the Veteran testified that he has several separate disabilities that stem from his service-connected back disability, to include: 1) a left lower extremity disability; 2) a neck disability; 3) a left shoulder disability; 4) a right knee disability; 5) a right hip disability; 6) a urinary and bowel disability; 7) a right testicle disability (which specifically developed after his spinal surgery); 8) hypertension (due to back pain); 9) decreased vision (as a result of the hypertension); and 10) headaches. The January 2018 Board remand directed the RO to provide the Veteran with a from VA-5126, Veteran’s application for Compensation and Pension, so that the Veteran can claim these conditions as secondary to his service-connected back condition. The RO sent the Veteran a form asking him to list any disabilities secondary to his service-connected condition, however it does not appear that the Veteran ever returned the form. Additionally, the record also shows that the Veteran underwent VA examinations for some of the conditions alleged as secondary to his back condition. However, VA regulations require that a formal claim be filed for any service connection claim. As such, to the extent the Veteran wishes to pursue such claims, a claim should be filed with the Agency of Original Jurisdiction (AOJ). In light of the findings of the fall 2019 VA examinations, the Board again strongly advises the Veteran to consult with his representative regarding filing a formal claim (if needed). Nevertheless, the Board does not have jurisdiction over such claims at present. On February 3, 2020, during the pendency of this appeal, the RO issued a rating decision increasing the Veteran’s evaluation for a back condition from 20 percent disabling to 60 percent disabling. At the same time, the RO increased the Veteran’s disability rating for right lower extremity radiculopathy and left lower extremity radiculopathy from 10 to 20 percent effective October 11, 2019. However, as this increase did not constitute a full grant of the benefits sought, the Veteran’s claim for a higher disability rating remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). On March 4, 2020, the RO issued a corrective decision based on clear and unmistakable error in which it terminated the two ratings for right lower extremity radiculopathy and left lower extremity radiculopathy and granting a higher lumbar rating based on incapacitating episodes as policy prohibits separate ratings for lower extremity nerved and lumbar spine when incapacitating episodes are involved. 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 a Diagnostic Code. 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 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 current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Entitlement to a disability evaluation in excess of 10 percent prior to January 29, 2013, in excess of 20 percent prior to October 11, 2019, and in excess of 60 percent thereafter for a back disorder. The Veteran maintains that his service connected back disorder warrants a disability rating in excess of 10 percent prior to January 29, 2013, in excess of 20 percent prior to October 11, 2019, and in excess of 60 percent thereafter In this regard, the General Rating Formula for Disease and Injuries of the Spine provides that with or without such symptoms as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, provides a 10 percent rating if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees, the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or a vertebral body fracture with loss of 50 percent or more of the height; a 20 percent rating if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, if the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, 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 if forward flexion of the thoracolumbar spine being 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating if there is unfavorable ankylosis of the entire thoracolumbar spine; and 100 percent rating if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5242. Note(1) also articulates that neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. Id. Normal back motion is flexion to 90 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left rotation to 30 degrees. 38 C.F.R. § 4.71a, Plate V. The Formula for Rating Intervertebral Disc Syndrome provides a 10 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 1 week during the past 12 months, a 20 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 2 weeks during the past 12 months, a 40 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 4 weeks during the past 12 months, and a 60 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Diagnostic Code 5243 defines an incapacitating episode as one where the Veteran has physician prescribed bed rest. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2016); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court 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, 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. See 38 C.F.R. §§ 4.40, 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. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the United States Court of Appeals for Veterans Claims (Court) in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court held that 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. Furthermore, in Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012) the Court held that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria. The Board finds that the record is adequate to address the concerns raised by the Court in both these cases. Specifically, the Board finds that the October 2019 VA examination when combined with the January 2013 VA examination provided VA with medical opinion evidence adequate to rate the Veteran’s disability when considering his complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups. Therefore, the Board finds that further delay by remanding these issues to provide the Veteran with a new VA examination is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Veteran underwent a VA examination of his back in March 2010. The examiner noted a moderately antalgic gait with a slow cadence. There was tenderness to palpation. On examination, forward flexion of the thoracolumbar spine was to 80 degrees, extension was to 20 degrees, right lateral flexion was to 20 degrees, left lateral flexion was to 20 degrees, right lateral rotation was to 20 degrees, and left lateral rotation was to 20 degrees, with pain. The Veteran’s combined range of motion of the thoracolumbar spine was 180 degrees. There was no additional loss of function or range of motion after three repetitions. Treatment records prior to January 29, 2013, to include newly obtained Social Security Administration records, show treatment for this condition with the Veteran’s complaints generally consisting of reported pain. A May 2011 treatment note shows the Veteran endorsed decreased lumbar and cervical range of motion with pain at the end of range of motion, but no specific measurements are provided. At the same time, other treatments notes from May 2011 and August 2013 indicate a normal range of motion. Based on the above, the Board finds that an increased rating in excess of 10 percent prior to January 29, 2013 for the Veteran’s back condition is not warranted. The Veteran also maintains that he is entitled to a disability rating in excess of 20 percent for his service-connected back condition between January 29, 2013 and October 11, 2019. The Veteran was afforded a VA examination of his back in January 2013. The examiner diagnosed the Veteran with degenerative disc disease of the thoracolumbar spine. On examination, forward flexion of the thoracolumbar spine was to 45 degrees, extension was to 20 degrees, right lateral flexion was to 15 degrees, left lateral flexion was to 15 degrees, right lateral rotation was to 15 degrees, and left lateral rotation was to 25 degrees, with pain on motion. The examiner also noted tenderness and guarding/muscle spasms but that they did not result in an abnormal gait or spinal contour. Available treatment records following the January 2013 VA examination are scarce, despite attempts by the RO to obtain the same, as directed in the January 2018 remand. These records consist primarily of treatment records associated with the Veteran’s non-service-connected neck disability. The Veteran was afforded another VA examination in October 2019. The examiner diagnosed the Veteran with Intervertebral Disc Syndrome and degenerative arthritis of the spine. On examination, forward flexion of the thoracolumbar spine was to 15 degrees, extension was to 10 degrees, right lateral flexion was to 15 degrees, left lateral flexion was to 15 degrees, right lateral rotation was to 20 degrees, and left lateral rotation was to 20 degrees, with pain on motion. The Veteran was unable to perform repetitive testing. The examiner found muscle spasms that result in abnormal gait or abnormal spine contour. There was no ankylosis of the spine. Finally, the examiner found IVDS with episodes of bed rest having a total duration of at least six weeks during the prior 12 months. Prior to October 11, 2019, the Veteran’s low back disability was assigned a 20 percent disability rating pursuant to the criteria set forth in the General Rating Formula, a separate 10 percent disability rating for radiculopathy of the left lower extremity and a 10 percent disability rating for right lower extremity radiculopathy under Diagnostic Code 8720, which resulted in a combined disability rating of 40 percent. See 38 C.F.R. §§ 4.25, 4.71a, Diagnostic Code 5242, and 4.124a, Diagnostic Code 8720. Beginning on October 11, 2019, based on the findings of the VA examination that same day, the Veteran’s low back disability was assigned a single 60 percent rating based on the criteria set forth in the IVDS formula. 38 C.F.R. § 4.25, Diagnostic Code 5243. As noted earlier, the Veteran’s two ratings for right lower extremity radiculopathy and left lower extremity radiculopathy were terminated effective October 11, 2019 when his back condition was rated under diagnostic code 5243. The Board has considered whether the Veteran would be entitled to a higher rating if his condition were rated under the general rating formula for the spine along with the bilateral lower extremity radiculopathy. However, the Veteran’s combined disability rating would not exceed 60 percent and the Veteran is, therefore, not prejudiced. While it appears that the Veteran may have been satisfied with the 60 percent disability rating effective October 11, 2019, the rating does not constitute a full grant of the benefits sought. The question that remains before the Board is whether the Veteran was entitled to a disability rating in excess of 60 percent after October 11, 2019. After a thorough review of the record, the Board finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 60 percent for the Veteran’s service-connected back disability after October 11, 2019. Under Diagnosis Code 5243 for intervertebral disc syndrome, a 60 percent disability rating in the maximum allowed rating. A rating in excess of 60 percent for a back disability is available under the general rating formula for diseases and injuries of the spine, however it requires unfavorable ankylosis of the entire spine. The evidence does not reflect unfavorable ankylosis of the entire spine at any time during the period on appeal. Accordingly, as this is the only manner in which a higher rating could be granted, entitlement to a disability rating in excess of 60 percent for a back disability after October 11, 2019 must be denied. 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 claims, 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. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Woehlke 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.