Citation Nr: 20037549 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 17-25 959 DATE: June 2, 2020 ORDER Entitlement to an increased disability rating in excess of 40 percent for a back condition is denied. FINDING OF FACT The Veteran’s back disability is shown to have been functionally limited to 30 degrees or less; but unfavorable ankylosis of the entire thoracolumbar spine has not been shown. CONCLUSION OF LAW The criteria for a rating higher than 40 percent for a back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1987 to October 2009. This matter was previously before the Board in February 2019, 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 May 2020 supplemental statement of the case. In a May 2020 rating decision, the RO increased the Veteran’s disability rating for service-connected back disorder to 40 percent disabling effective July 18, 2016. Regardless of the RO’s actions, the issue remains before the Board because the increased rating was not a complete grant of the maximum benefits available. See AB v. Brown, 6 Vet. App. 35 (1993). Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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 Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). 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 General Rating Formula for Diseases and Injuries of the Spine, under which the Veteran’s back disability is rated, 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. A 40 percent rating is warranted where there is forward flexion of the thoracolumbar spine of 30 degrees or less. 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. 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. Pursuant to the February 2019 Board remand directions, the Veteran was afforded a VA examination of his back in October 2019. At that time, the examiner found pain and reduced range of motion in all directions, but did not note any ankylosis of the spine. This is consistent with the Veteran’s prior July 2016 VA back examination which also found pain and reduced range of motion but not ankylosis of the spine. The Board acknowledges and has considered the statements from the Veteran. In fact, it is these statements that provide the basis, in part, for the evaluations, which indicate a serious back condition that will clearly cause the Veteran many problems. While the Veteran is competent to report the symptoms of his disabilities, he is not competent to opine on matters requiring medical knowledge, such as determining the severity of his medical condition at any given time, based on the criteria above. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the lay assertions made by the Veteran and his family members are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of a higher rating pursuant to the applicable criteria. As the evidence shows the Veteran has movement in his thoracolumbar spine, it follows that the thoracolumbar spine is not ankylosed. Consistent with this finding, the VA examiners in 2019 and 2016 found no objective evidence of ankylosis of the spine. Therefore, the Board finds that the criterion for the next higher rating based on limitation of motion and orthopedic manifestations under the General Rating Formula has not been shown. 38 C.F.R. § § 4.71a, Diagnostic Code 5237. 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.