Citation Nr: 21001259 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 13-28 424A DATE: January 7, 2021 ORDER Entitlement to an increased rating of 40 percent, but no higher, from May 27, 2009 (excluding a period of temporary total convalescence rated at 100 percent from August 1, 2012, through October 31, 2012, under 38 C.F.R. § 4.30) for lumbosacral sprain with degenerative arthritis is granted. Entitlement to an increased rating above 40 percent since November 1, 2012, for lumbosacral sprain with degenerative arthritis is denied. FINDINGS OF FACT 1. For the appeal period spanning May 27, 2009, through October 31, 2012 (excluding a period of temporary total convalescence rated at 100 percent from August 1, 2012, through October 31, 2012, under 38 C.F.R. § 4.30), the preponderance of the probative evidence weighs in favor of finding that the low back disability did not manifest in ankylosis. 2. For the appeal period since November 1, 2012, the preponderance of the probative evidence weighs in favor of finding that the low back disability did not manifest in ankylosis. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating of 40 percent, but no higher, from May 27, 2009 for lumbosacral sprain with degenerative arthritis have been met. 38 U.S.C. §§ 1155, 5100, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326, 3.655, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.71a, Diagnostic Codes (DC’s) 5235 to 5243, General Rating Formula for Diseases and Injuries of the Spine (2018). 2. The criteria for entitlement to an increased rating above 40 percent since November 1, 2012, for lumbosacral sprain with degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5100, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326, 3.655, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.71a, DC’s 5235 to 5243, General Rating Formula for Diseases and Injuries of the Spine (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had qualifying service from July 1980 to November 1988. In December 2016, the Veteran testified at a Board videoconference hearing before a Veterans Law Judge other than the undersigned. In a September 2017 Decision, the Board remanded entitlement to an increased rating above 20 percent (excluding a period of temporary total convalescence rated at 100 percent from August 1, 2012, through October 31, 2012, under 38 C.F.R. § 4.30) for lumbosacral sprain with degenerative arthritis. In a January 2018 Rating Decision, the agency of original jurisdiction (AOJ) granted: (a) an increased rating from 20 percent to 40 percent, effective November 8, 2017, for lumbosacral sprain with degenerative arthritis; (b) separate compensable ratings for bilateral lower extremity radiculopathy (sciatic nerve) associated with the lumbosacral sprain with degenerative arthritis; and (c) a separate compensable rating for a lumbar scar associated with lumbosacral sprain with degenerative arthritis. Despite this favorable decision, higher ratings remained available; as such, the appeal remained properly before the Board. AB v. Brown, 6 Vet. App. 35, 38 (1993). In a May 2018 Decision, the Board denied the issues herein. In a May 2019 Joint Motion for Remand, the U.S. Court of Appeals for Veterans Claims (Court) vacated the May 2018 Board Decision and remanded the issues herein. In a September 2019 Decision, the Board remanded the issues herein. In a July 2020 Rating Decision, the AOJ granted: (a) an increased rating from 20 percent to 40 percent effective November 1, 2012; and (b) a separate compensable rating for bilateral lower extremity radiculopathy (femoral nerve) associated with the lumbosacral sprain with degenerative arthritis. Despite this favorable decision, higher ratings remained available; as such, the appeal remained properly before the Board. AB, supra. In a September 2020 Decision, the Board remanded the issues herein. On November 17, 2020, VA mailed the Veteran a letter informing him that: (a) the Veterans Law Judge who conducted the December 2016 Board hearing was no longer employed by the Board; and (b) the Veteran could request a new Board hearing if he so desired. Arneson v. Shinseki, 24 Vet. App. 379 (2011). The Veteran did not timely request to appear at another Board hearing; as such, the undersigned Veterans Law Judge has proceeded to adjudicate the appeal. 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. 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. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Under the General Rating Formula for Disease and Injuries of the Spine: a 40 percent rating is warranted for forward flexion of the thoracolumbar spine being 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; and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC’s 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. 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. 38 C.F.R. §§ 4.40, 4.45, 4.59; 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. 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. 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 disabilities involving arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the 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. 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. Additionally, in Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that, when possible, examiners must include range of motion testing on active and passive motion and in weight-bearing and non-weight-bearing conditions. Further, in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017), the Court held that an examiner must attempt to elicit information regarding the severity, frequency, duration, and functional loss during flare-ups before determining that additional range of motion loss due to flare-ups cannot be estimated. 1. Entitlement to an increased rating above 20 percent prior to November 1, 2012 (excluding a period of temporary total convalescence rated at 100 percent from August 1, 2012, through October 31, 2012, under 38 C.F.R. § 4.30) for lumbosacral sprain with degenerative arthritis The Veteran generally contends that, throughout the appeal period, he has met the criteria for a higher rating for his low back disability. The Veteran’s low back disability is currently rated under DC 5242 at: 10 percent from November 11, 1998, through February 24, 1991; 20 percent from February 25, 1991, through July 31, 2012; 100 percent from August 1, 2012, through October 31, 2012 (under 38 C.F.R. § 4.30); and 40 percent November 1, 2012. See July 2020 Codesheet; 38 C.F.R. § 4.71a, DC 5242, General Rating Formula for Diseases and Injuries of the Spine. Additionally, the low back disability has already been granted separate ratings for associated neurological manifestations and scars. See July 2020 Codesheet. As discussed in the September 2020 Board Decision, the current appeal period begins on May 27, 2009 (one year prior to the date VA received the Veteran’s claim for an increased rating on May 27, 2010). 38 C.F.R. § 3.400(o)(2). Although the Veteran had pursued an increased rating prior to his request in the May 27, 2010, Report of General Information (see April 1991 VA Form 21-526; May 1991 Notification Letter; April 1993 Rating Decision with May 1993 Notification Letter containing appeal rights; November 1994 Rating Decision with November 1994 Notification Letter containing appeal rights), he did not timely appeal the November 1994 Rating Decision and it became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.200. Thus, the current appeal period begins on May 27, 2009. The Veteran has been afforded several VA examinations in connection with this increased rating appeal. See August 2010 VA back conditions examination; March 2015 VA back conditions examination; November 2017 VA back conditions examination; December 2019 VA back conditions examination with December 2019 VA opinion regarding severity; June 2020 VA opinion regarding severity; September 2020 independent medical opinion (IMO) regarding severity. However, the December 2019 VA back conditions examination, the December 2019 VA opinion, the June 2020 VA opinion, and the September 2020 IMO opinion are the only findings that are consistent with the holdings in DeLuca, Correia, and Sharp. DeLuca, supra; Correia, supra; Sharp, supra. As such, the Board focuses its attention on the findings since December 2019 and applies them retroactively to the entire appeal period. During the December 2019 VA back conditions examination, the Veteran reported: (a) constant back pain with constant numbness, constant tingling, and intermittent pain down both legs; (b) flare-ups several times per week lasting a couple of hours, resulting in the inability to move much during those periods (must lay in bed), and with pain improving with rest; and (c) functional loss described as inability to run or use stairs, needing a cane to get up from a seated position, inability to lift heavy objects, and inability to walk or stand for long periods of time. The examiner, in pertinent part: (a) measured inial forward flexion from 0 to 20 degrees and noted that the Veteran could not fully forward or laterally flex or extend his back, with pain causing functional loss; (b) found no additional loss of function or range of motion after observed repetitive use testing (three repetitions); (c) found that the examination is medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and that pain significantly limits functional ability with repeated use over a period of time, with an estimated range of motion loss from 0 to 20 degrees; (d) found that the examination is medically consistent with the Veteran’s statements describing functional loss during flare-ups and that pain significantly limits functional ability with flare-ups, with an estimated range of motion loss from 0 to 10 degrees; (e) found no ankylosis; and (f) found no intervertebral disc syndrome (IVDS). In the December 2019 VA opinion regarding severity, the examiner explained that: (a) the severity of the disability prior to November 8, 2017, is similar to the severity during the December 2019 VA examination; (b) the December 2019 VA examination findings regarding degrees of motion lost, pain, weakness, fatigability, incoordination, painful motion, repetitive motion, and flare-ups are also representative of the severity of the disability for the period from May 26, 2009, to November 8, 2017 (although the Veteran had surgery in 2012, which temporarily improved his back, it worsened back to the level of severity prior to his surgery within several months and has remained at that level through the present); (c) because the symptoms and limitations from May 26, 2009, to November 8, 2017, are similar to current symptoms and limitations, the current measurements and symptoms obtained in the December 2019 examination serve to document those historic symptoms and limitations as well; and (d) the Veteran did not take his medications on the day of the December 2019 examination to demonstrate the severity of his back condition off medications. In the June 2020 VA opinion regarding severity, the examiner explained that: (a) range of motion is always a professional judgement in the room based on observed validity and effort; (b) the December 2019 examination is the most current for rating purposes; and (c) the December 2019 examination appears to contain the most current and accurate findings. In the September 2020 IMO opinion regarding severity, the examiner explained that: (a) as stated in the prior opinion from December 2019, the December 2019 VA examination findings regarding degrees of motion lost, pain, weakness, fatigability, incoordination, painful motion, repetitive motion, and flare-ups are representative of the severity of the disability for the period from May 26, 2009, to November 8, 2017, as well as currently (although the Veteran had surgery in 2012, which temporarily improved his back, it worsened back to the level of severity prior to his surgery within several months and has remained at that level through the present); (b) as stated in the prior opinion from December 2019, because the symptoms and limitations from May 26, 2009, to November 8, 2017, are similar to current symptoms and limitations, the current measurements and symptoms obtained in the December 2019 examination serve to document those historic symptoms and limitations as well; and (c) as stated in the prior opinion from December 2019, the Veteran did not take his medications on the day of the December 2019 examination to demonstrate the severity of his back condition off medications. Based on this evidence, the Board finds that, since May 27, 2009 (excluding a period of temporary total convalescence rated at 100 percent from August 1, 2012, through October 31, 2012, under 38 C.F.R. § 4.30), the Veteran’s low back disability has manifested in symptoms consistent with a 40 percent rating, but no higher. Specifically, considering the functional loss contemplated by the holdings in DeLuca, Correia, and Sharp, the December 2019 VA examination findings, which are representative of the entire appeal period and applied retroactively, clearly meet the schedular criteria for the 40 percent rating (a 40 percent rating is warranted, in pertinent part, for forward flexion of the thoracolumbar spine being 30 degrees or less; in this case, the Veteran’s forward flexion during the December 2019 examination measured to 20 degrees initially and to 10 degrees during flare-ups). However, the Board finds that, throughout the appeal period, the Veteran’s low back disability has not manifested in symptoms consistent with a rating higher than 40 percent. Specifically, a 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC’s 5235-5242. Neither the December 2019 VA examination nor the other pertinent evidence (VA medical records, private medical records, and lay contentions) indicates that the low back disability manifested in ankylosis; moreover, the Board finds that the Veteran is not competent to provide the missing diagnosis of ankylosis because this is a medical finding and the evidence does not indicate that he has the required medical background to make such a finding. Davidson, supra. In sum, because the absence of ankylosis precludes a rating higher than 40 percent, the Board: (a) grants entitlement to an increased rating of 40 percent, but no higher, prior to November 1, 2012 (excluding a period of temporary total convalescence rated at 100 percent from August 1, 2012, through October 31, 2012, under 38 C.F.R. § 4.30) for lumbosacral sprain with degenerative arthritis; and (b) denies entitlement to an increased rating above 40 percent since November 1, 2012, for lumbosacral sprain with degenerative arthritis. Thus, after the AOJ implements the decision herein, the low back disability should be rated at 40 percent since May 27, 2009 (excluding a period of temporary total convalescence rated at 100 percent from August 1, 2012, through October 31, 2012, under 38 C.F.R. § 4.30). 2. Entitlement to an increased rating above 40 percent since November 1, 2012, for lumbosacral sprain with degenerative arthritis This issue is denied for the same reasons and bases discussed above. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Daus, 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.