Citation Nr: 20059902 Decision Date: 09/11/20 Archive Date: 09/11/20 DOCKET NO. 14-39 439 DATE: September 11, 2020 ORDER Entitlement to an increased disability rating higher than 40 percent for a back disability is denied. FINDINGS OF FACT 1. The Veteran's back disability is not manifested by unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. 2. The Veteran has not had incapacitating episodes having a total duration of at least six weeks during a 12-month period. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for a back disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1968 to December 1972. This matter comes before the Board of Veterans’ Appeals (Board) following a November 2018 Board remand. This matter was originally on appeal from a December 2011 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In December 2017, the Veteran testified at a videoconference Board hearing before the undersigned. Increased Rating VA assigns disability ratings by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. If two ratings are potentially applicable, 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. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. The United States Court of Appeals for Veterans Claims (Court) has held that, at the time of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Court also has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluation of a musculoskeletal disability is based on limitation of motion, that evaluation must include consideration of impairment of function due to such factors as pain on motion, weakened motion, excess fatigability, diminished endurance, or incoordination. 38 C.F.R. §§ 4.40, 4.45, 4.59; see DeLuca v. Brown, 8 Vet. App. 202 (1995). In Correia v McDonald, 28 Vet. App. 158 (2016), the Court held that 38 C.F.R. § 4.59 indicates that evaluation of joints that have painful motion also should include consideration of whether there is pain on both active and passive motion, consideration of whether there is pain with and without weightbearing, and comparison of the range of motion to that of any opposite undamaged joint. When there is an exceptional disability picture, such that the rating schedule criteria do not reasonably describe a claimant’s disability level and symptomatology, a RO may refer a case to the Director of VA Compensation Service for consideration of an extraschedular rating. See 38 C.F.R. § 3.321(b)(1) (2018); see also Thun v. Peake, 22 Vet. App. 111, 115 (2008). Extraschedular ratings are limited to cases in which it is impractical to apply the regular standards of the rating schedule because there is an exceptional or unusual disability picture, with such related factors as frequent hospitalizations or marked interference with employment. 38 C.F.R. § 3.321(b)(1). Evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45. See generally DeLuca v. Brown, 8 Vet. App. 202 (1995). Pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). Actually painful, unstable, or malaligned joints due to healed injury are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board of Veterans’ Appeals (Board) must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Entitlement to an increased disability rating higher than 40 percent for a back disability The Veteran’s back disability was rated as intervertebral disc syndrome under 38 C.F.R. § 4.71a, Diagnostic Code 5243. Intervertebral disc syndrome is to be evaluated under either the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. The General Rating Formula under 38 C.F.R. § 4.71a, Diagnostic Code 5235 – 5243, assigns a 10 percent evaluation for forward flexion greater than 60 degrees but not greater than 85 degrees; or, combined range of motion 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 evaluation is warranted for forward flexion greater than 30 degrees but not greater than 60 degrees; or, combined range of motion 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. An evaluation of 40 percent is warranted when there is forward flexion to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. An evaluation of 50 or greater requires unfavorable ankylosis of the entire thoracolumbar spine. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. Unfavorable ankylosis exists where the fixation is in flexion or extension, and the ankylosis results in difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; and/or neurologic symptoms due to nerve root stretching. Id. These criteria are controlling regardless of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. When rating based on incapacitating episodes, a 10 percent rating is warranted for 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 for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is defined as a period of acute signs and symptoms that require bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1. In this case, a May 2010 rating decision granted service connection for a back disability with an evaluation of 40 percent, effective June 9, 2009. A December 2011 rating decision reduced the Veteran’s evaluation for a back disability from 40 percent to 20 percent, effective February 9, 2011, following a February 2011 VA examination. The November 2018 Board decision restored the Veteran’s back disability evaluation to 40 percent, effective February 9, 2011. The May 2010 rating decision was evaluated under diagnostic code (DC) 5243. As of June 2019, the Veteran’s rating criteria was changed to DC 5242. In April 2010 the Veteran was afforded a VA examination. The examiner noted the Veteran reported his back disability has become progressively worse since onset and pain varies from dull ache to a throbbing pierce. The severity of the pain was mild to severe and constant daily. The Veteran reported he experienced daily flares resulting from twisting, turning, or bending too quickly. In addition, the Veteran reported he was limited in walking up to one mile and standing for 30 minutes. The examiner reported the Veteran’s active range of motion was limited in flexion to 40 degrees, extension to 8 degrees, left lateral extension limited to 10 degrees, right lateral flexion limited to 10 degrees, and right lateral rotation limited to 10 degrees. The examiner reported there was objective evidence of pain on active range of motion. The examiner reported there was no evidence of ankylosis and no incapacitating episodes of spine disease. In a March 2011 VA examination, the Veteran reported decreased motion, stiffness, weakness, spasm, moderate and constant pain, and an ability to walk one to three miles. The examiner noted the Veteran had no ankylosis, but objective evidence of guarding but not severe enough to be responsible for an abnormal gait or spinal contour. The examiner reported the Veteran’s active range of motion was limited in flexion to 45 degrees, extension to 10 degrees, left lateral extension limited to 15 degrees, right lateral flexion limited to 10 degrees, and right lateral rotation limited to 20 degrees. The examiner reported there were no incapacitating episodes of spine disease and the Veteran did not report flare-ups. The Board remanded the Veteran’s claim for a rating in excess of 40 percent because the March 2011 VA examination was inadequate. Therefore, the Veteran was afforded a new VA examination in May 2019. The examiner noted the Veteran reported the pain has been chronic but did not report a recent change or progression of symptoms in the past six months. The Veteran reported limitation in walking more than 20 minutes, standing in one position more than 15 to 20 minutes, sitting in one position (required for driving) more than 30 minutes, bending his back, twisting his back, pushing, pulling, using stairs and lifting more than 25 pounds. Additionally, the Veteran reported he cannot run and if activities that worsen are stopped, pain level and activity level go back to the usual base line after 45 minutes. The Veteran did not report flare-ups. The examiner reported the Veteran’s range of motion in flexion was limited to 45 degrees, extension to 10 degrees, right lateral flexion to 20 degrees, left lateral flexion to 10 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 15 degrees. The examiner reported pain with weight bearing and no additional loss of function or range of motion after three repetitions. The examiner reported the Veteran’s range of motion after repeated use over time in flexion was limited to 30 degrees, extension to 5 degrees, right lateral flexion to 15 degrees, left lateral flexion to 5 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 10 degrees. The examiner reported the Veteran did not experience guarding or muscle spasm, and there was no evidence of ankylosis. Further, the examiner reported the Veteran has invertebral disc syndrome (IVDS) but no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. Furthermore, the examiner reported the Veteran experienced pain with active and passive range of motion, and with weight bearing but there was no objective evidence of pain with non-weight bearing. In short, the Board finds that the criteria for entitlement to a rating in excess of 40 percent are not satisfied for the Veteran’s back disability for any portion of the appeals period. The VA examination reports reflect that the Veteran does not have unfavorable ankylosis of his entire thoracolumbar spine. Furthermore, the evidence of record reflects that the Veteran did not have incapacitating episodes, as defined by regulation, having a total duration of at least six weeks during a 12-month period. The Veteran is in receipt of the maximum evaluation available for limitation of motion of the spine under the rating schedule. Also, a 40 percent rating is assigned for favorable ankylosis. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Thus, the 40 percent rating contemplates episodes in which the Veteran believes his disability is so severe that he cannot move his back. Unfavorable ankylosis is a condition in which the entire thoracolumbar spine or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). The Board does not find that the medical evidence and the Veteran’s description of the functional impairment he experiences during such flare-ups demonstrates the level of disability associated with unfavorable ankylosis of the thoracolumbar spine, which is the criteria associated with the next higher rating of 50 percent. Accordingly, entitlement to a rating in excess of 40 percent is not warranted. (continued on next page) The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Daley, 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.