Citation Nr: 21000687 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 11-03 434 DATE: January 5, 2021 ORDER Entitlement to an increased rating in excess of 10 percent for a back disability, prior to October 5, 2012, is denied. Entitlement to an increased rating in excess of 20 percent for a back disability, from October 5, 2012, is denied. FINDINGS OF FACT 1. Prior to October 5, 2012, the preponderance of evidence is against a finding that the Veteran’s back disability manifested with a range of motion limited to less than 60 degrees of flexion, a combined range of motion of less than 120 degrees, or evidence of ankylosis, abnormal gait, or spinal contour. 2. From October 5, 2012, the preponderance of evidence is against the finding that the Veteran’s back disability manifested with a range of motion limited to less than 30 degrees of flexion or evidence of ankylosis. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for a back disability, prior to October 5, 2012, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105 (e), 4.1, 4.2, 4.3, 4.21, 4.71(a), General Rating Formula for Diseases and Injuries of the Spine. 2. The criteria for entitlement to a rating in excess of 20 percent for a back disability, from October 5, 2012, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105 (e), 4.1, 4.2, 4.3, 4.21, 4.71(a), General Rating Formula for Diseases and Injuries of the Spine. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from January 1995 to March 2002, and in the United States Army from April 2006 to April 2007. Increased Rating 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 rating of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from 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 reflect 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). The rating criteria use a General Rating Formula for Diseases and Injuries of the Spine for Diagnostic Codes 5235 to 5243 unless 5243 is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The General Rating Formula provides a schedule of ratings for spine disabilities with or without 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. Unfavorable ankylosis of the entire spine warrants a 100 percent rating. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. 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 warrants a 40 percent rating. Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine warrants a 30 percent rating. Forward flexion of the thoracolumbar spine greater than 20 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 warrants a 20 percent rating. Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, the combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 warrants a 10 percent rating. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. The rater is instructed to rate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 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. §§ 4.71, 4.71a, Plate V, General Rating Formula for Diseases and Injuries of the Spine, Note (2). Each range of motion measurement is rounded to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (4). In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion. Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (3). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, 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. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. Each range of motion measurement is rounded to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Disability of the thoracolumbar and cervical spine segments is separately rated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Each range of motion measurement is rounded to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (6). Where there is a question as to which of two rating is to 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. When rating disabilities using Diagnostic Codes which provide a rating on the basis of loss of range of motion, VA must consider, to the extent possible, the degree of additional loss of function due to pain, weakened movement, excess fatigability, or incoordination. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45. 1. Entitlement to an increased rating in excess of 10 percent for a back disability, prior to October 5, 2012 The Veteran claims that his service-connected low back disability is more severe than contemplated by the 10 percent rating assigned prior to October 5, 2012. A review of the competent medical evidence of record, to include VA medical records and a VA examination, shows evidence of, essentially, normal range of motion, with no evidence ankylosis, abnormal gait, or spinal contour. Therefore, the Board finds that a higher rating for the Veteran’s back disability is not warranted under the General Rating Formula for Diseases and Injuries of the Spine, and the claim for increased prior to October 5, 2012, must be denied. As noted above, under the General Rating Formula, the next higher rating of 20 percent rating is warranted if 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. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. During this period, the Veteran was provided with a VA examination assessing the nature and severity of his back disability in June 2009. During this examination the Veteran was diagnosed with degenerative disc disease of the lumbar spine. The Veteran was noted to report consistent back pain, with reports of decreased motion, especially upon prolonged use. To this end, the Veteran reported that he was very limited in walking and standing, typically being able to walk about 200 yards on a good day. The Veteran noted flare-ups, on average twice a week, with increased pain and required rest. On examination, the Veteran’s range of motion was recorded as essentially normal, with 90 degrees of forward flexion, and a combined range of motion limited 240 degrees, with pain at the endpoints. The Veteran had no spasms, abnormal gait, or ankylosis, with no notation of incapacitating episodes due to IVDS. X-rays found severe degenerative changes. The examiner noted pain on movement, with no decreased in range after repetitive motion testing, and no evidence of flare-ups on testing. Finally, the examiner noted no effects of incoordination, fatigue, weakness, or lack of endurance on spine function. For the relevant period prior to October 5, 2012, other than that VA examination of record, there is no medical evidence that has shown a worsening condition commensurate to the criteria for a rating in excess of 10 percent, to include in records for VA and private treatment. The Board notes that the Veteran’s claims file contains contemporaneous VA and private medical records for the back disability throughout the period. However, those medical records do not show any quantitative increase in severity of the back disability with regards to the objective criteria set out in the rating schedule. Furthermore, those records do not show additional diagnoses of any conditions or symptoms which would warrant a rating higher than those noted in the VA examination. Specifically, the evidence does not show that the Veteran had ankylosis, forward flexion of 60 degrees or less, or had muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The Board notes that while the June 2009 VA examination noted that the Veteran had back pain, which limited his mobility and activities, the objective measurements of the Veteran’s range of motion during the examination do not provide the degree or severity of the limitation such that any higher rating could be assigned. Likewise, with regards to the VA treatment records, while evidence of pain is prevalent, there is no indication that the Veteran’s condition fulfills the objective criteria requisite for the next higher rating. As an example, the VA medical records show treatment for the back disability throughout the pertinent period, to include conducting X-ray diagnostics. However, the Board notes that those records only detail various treatments for pain, but do not provide any analysis or testing to identify the degree in which the range of motion was affected, or the degree of functional impairment the Veteran had as a result of pain. Therefore, the Board finds that the most persuasive evidence is the range of motion measured at the VA examination noted herein. Therefore, those records do not support a claim for an increased rating in excess of 10 percent. Consequently, with no competent evidence of a condition worse than that reported during the VA examinations, during the relevant period, the Board finds that a rating in excess of 10 percent is not warranted. The Board finds that the preponderance of the evidence is against the assignment of any higher rating prior to October 5, 2012, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to an increased rating in excess of 20 percent for a back disability, from October 5, 2012 The Veteran claims that his service-connected back disability is more severe than contemplated by the 20 percent rating currently assigned for the period from October 5, 2012. A review of the competent medical evidence of record, to include VA and private medical records and examinations, shows evidence of a decreased range of motion of forward flexion limited to, at worst, 45 degrees, with no evidence ankylosis. Therefore, the Board finds that a higher rating for the Veteran’s back disability is not warranted under the General Rating Formula for Diseases and Injuries of the Spine, and the claim for increased must be denied. During the claims period, medical evidence has been obtained by the VA and submitted by the Veteran, to include VA examinations from October 2012, March 2018, and September 2020; the Board will address these in turn. At an October 2012 VA examination, the Veteran’s back disability was assessed with regard to range of motion and functional affect. The Veteran was noted to report intermittent pain in the back, with reports of flare-ups and limited range of motion. On examination, range of motion was recorded to be limited to forward flexion of 45 degrees, with objective evidence of pain. Repetitive motion testing, however, revealed no additional decreases in range. The examiner noted localized tenderness/pain on palpation, with no guarding and/or muscle spasms. The examination report noted no diagnosis of IVDS and did not note any finding of ankylosis. With regards to functional impact, the examiner noted the Veteran’s back rendered him, essentially to only do sedentary work. The examiner provided a diagnosis of degenerative arthritis of the lumbar spine. In March 2018, the Veteran was provided another VA examination to assess the nature and severity of his back disability. At that examination, the Veteran was diagnosed with degenerative disc disease, IVDS, and spinal stenosis. Upon testing the Veteran’s range of motion was noted to be limited to 50 degrees, with a combined range of motion of 140 degrees. The examiner noted no pain/tenderness on palpation, with some pain on weightbearing. On repeat motion testing, no additional loss of objective range of motion was noted after three repetitions. The Veteran was noted to report he suffered from flare-ups, which caused additional and increased pain, to include “locking up” of his back; however, as the examination was not conducted during a flare-up the examiner could not conclude any additional loss of objective range of motion during flare-ups. The examination revealed no evidence of ankylosis or any incapacitating episodes due to IVDS. At his most recent examination, conducted in September 2020, the Veteran repeated the same subjective complaints of pain and limited motion, to especially include after prolonged standing or walking. On examination, the Veteran’s objective range of motion was limited to forward flexion of 70 degrees, with a combined range of motion of 170 degrees. Repeat motion testing demonstrated no further decrease in motion. The examiner noted no evidence of localized tenderness, however, noted pain on weightbearing. The examiner, when considering flare-ups, noted explicitly that such increase in pain during flare-ups did not affect functional loss or objective range of motion. The examiner also found no IVDS or ankylosis. The Veteran was diagnosed with degenerative disc disease of the lumbar spine. The examiner noted the functional affect to the Veteran’s ability to work included being unable to run, and difficulty with prolonged walking and or standing, which, therefore, precluded occupations which were physical in nature. The next higher rating of 40 percent requires forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Here, the medical evidence from October 5, 2012, has not shown a worsening condition commensurate to the criteria for a rating in excess of 20 percent, to include in records of VA examinations and treatment records. The Board notes that the Veteran’s claims file contains contemporaneous VA medical records for the back disability throughout the relevant period. However, review of those records does not show quantitative increase in severity of the back disability with regard to the objective criteria set out in the rating schedule requisite for the next higher rating, from October 5, 2012. Specifically, these records do not show objective testing demonstrating limitation of flexion of 30 degrees or less, or any evidence of ankylosis of the Veteran’s lumbar spine. The Board notes that while VA medical records note that the Veteran has back pain, which limits his mobility and activities, those records do not provide the degree or severity of the limitation such that any higher rating could be assigned. Therefore, the Board finds that the most persuasive evidence is the range of motion measured during the VA examinations described herein. Consequently, with no competent evidence of a condition worse than that reported during the VA examinations, the Board finds that a rating in excess of 20 percent for this period is not warranted. Furthermore, those records do not show additional diagnoses of any conditions or symptoms which would warrant a rating higher than those noted in the VA or private examinations. Specifically, the evidence does not show that the Veteran has any form of ankylosis that would warrant a higher rating. The Board has considered, along with the schedular criteria, functional loss due to pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board finds that the claims file does not contain sufficient evidence to support any additional increase in disability rating based on any functional loss due to flare-ups of pain. While the Veteran has reported experiencing pain and flare-ups, medical records and examinations show that pain did not result in functional loss. Specifically, during the VA examinations of record, none of the examiners reported that upon repetitive testing, any additional limitation of motion that would equate to those requisite criteria for the next higher rating. Therefore, the Board finds that no further increase in the Veteran’s current back rating is warranted, for either period, due to any additional factors causing limitation of function. Furthermore, the Board has considered the Veteran’s consistent reports of pain, in conjunction with the examinations of record, in finding that the current disability ratings were warranted for these periods, despite a greater range of motion at the subsequent examination. The Board, in making the determination of the Veteran’s ratings, has not ignored the Veteran’s statements concerning the symptomology of his back disability, with specific regard to pain and limitation of function. The Board finds that the Veteran is a lay person and is competent to report symptoms he observes, such as pain and fatigue. Layno v. Brown, 6 Vet. App. 465 (1994). Whether lay evidence is considered competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Here, an opinion concerning the relationship between the Veteran’s symptoms and a specific level of impairment of his back disability is of a medically complex nature. The diagnosis and analysis require expert medical training and the use of diagnostics which the Veteran has not demonstrated he possesses. Therefore, the Board finds that the Veteran is not competent provide an opinion as to whether the back disability warrants a rating in excess of disability rating he receives, which requires objective measurement of range of motion by a physician, and consideration of other functional limitation factors. The Board finds that objective evidence provided by the medical examiners of record to be more persuasive than the Veteran’s contention that a higher rating is warranted. (Continued on the next page) Accordingly, the Board finds that the criteria for an increased rating in excess of 20 percent, from October 5, 2012, for a back disability have not been met. The Board finds the current disability ratings, for those periods adequately contemplates the Veteran’s disability picture, and as such a higher rating is not warranted by the evidence of record, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ziheng Zhu, 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.