Citation Nr: 21004381 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 09-11 304A DATE: January 27, 2021 ORDER Entitlement to a rating higher than 20 percent for lumbar spine degenerative joint disease (DJD) for the period prior to March 10, 2014 is denied. FINDING OF FACT For the period prior to March 10, 2014, the weight of the evidence of record is against a finding that the chronic orthopedic symptoms manifested with range of motion (ROM) on forward flexion of 0 to 30 degrees or less, even when functional loss due to flare-ups and repeat use are considered. CONCLUSION OF LAW The criteria for a rating higher than 20 percent for the chronic orthopedic symptoms of lumbar spine DJD for the period prior to March 10, 2014 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, General Rating Formula for Diseases and Injuries of the spine (General Formula), Diagnostic Code (DC) 5242. REASONS AND BASES FOR FINDING AND CONCLUSION As noted in the September 2018 Board remand, on initial review the Board denied a rating higher than 20 percent for the period prior to March 10, 2014 but, pursuant to the Veteran’s appeal, the Court of Appeals for Veterans Claims (Court) vacated that part of the Board’s decision that applied to the rating for the lumbar spine DJD for that period and remanded the case to the Board for further review consistent with the Court’s Order. Hence, the Board remanded for additional development. See 09/18/2018 Remand BVA. As discussed in the decision below, the Board finds substantial compliance with the remand directive. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a rating higher than 20 percent for lumbar spine DJD for the period prior to March 10, 2014 is denied. In response to the post-remand medical examination report and the addendum to it, the Veteran and her representative contend that, when her functional loss due to flare-ups and repeat use are considered, she meets or approximates the criteria for the maximum rating of 40 percent for her orthopedic symptoms. For the reasons set forth below, the Board disagrees and finds otherwise. The Veteran’s lumbar spine DJD is rated under 38 C.F.R. § 4.71a, DC 5242. Under the General Formula a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined ROM 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 for forward flexion of the thoracolumbar spine to 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. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Formula. The Veteran is already separately rated for the associated objective neurological abnormalities of her lumbar spine disability, and that rating is not the subject of this decision. 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. 38 C.F.R. § 4.71a, General Formula, Note 5. When evaluating musculoskeletal disabilities based on limitation of motion (LOM), 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on ROM testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with ROM measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The primary evidence before the Board for the period prior to March 10, 2014 was the June 2008 VA examination report. The Court vacated the December 2016 Board decision because the examiner did not provide a Sharp assessment, and it was for that assessment that the Board remanded in 2018. As noted in the December 2016 Board decision, the June 2008 VA examination report reflects the Veteran’s noted complaints of constant sharp pain and spasms at her mid-lower back on sitting, doing housework, and lifting. She assessed her pain on average as of 6-7/10 intensity. She described the pain as like needles sticking in her back. When lifting, her pain could increase to 8-9/10. The Veteran reported further that pain shot down her legs, left greater than right. She reported flare-ups that could last from 3 to four days to more than a week, and that she was incapacitated at least a couple of times a month. The Veteran denied any bowel or bladder involvement, and she reported that she did not know if her back brace was still effective. She reported further that she no longer did much walking, she was independent in her activities of daily living, and her job was mostly sedentary. She experienced pain after driving for more than 20 minutes. The examiner observed the Veteran to walk unaided with a normal, brisk, reciprocal heel-toe gait. There was no unusual shoe wear. Physical examination revealed the Veteran’s spine and limbs as symmetric without obvious deformity or abnormality. Her head was midline between the shoulders, her posture was erect, and she had good rhythm of spine motion. There was no guarding or apprehension, or tenderness or pain on palpation. ROM on forward flexion was to 94 degrees and backward extension to 30 degrees, both without evidence of pain. Left lateral flexion was to 28 degrees with pain at 22 degrees; right lateral flexion to 26 degrees without pain; lateral rotation was to 36 degrees bilaterally, with pain to the left at 30 degrees, and no pain to the right. There was no change in ROM with repetition of movement. See 06/25/2008 VA Examination, 2nd Entry, P. 10. As noted earlier, the September 2018 Board remand directed that the AOJ arrange for a clinician to review the June 2008 examination report and provide a retroactive Sharp assessment. The clinician’s initial report (09/04/2020 C&P Exam) reflects that, based on record review of documents from June 2008 to March 9, 2014, it is feasible that the Veteran experienced decreased ROM during flares resulting in no mobility. The Veteran reported in June 2008 that her flares were pretty severe, she could not do anything, and that she was incapacitated. It was documented that the Veteran was unable to move during severe flares, and that the history, examination, and imaging supported the loss of mobility during flares. Id. P. 4. As is apparent, however, the clinician did not assess the specific additional loss of ROM in degrees of lost motion under those circumstances. Hence, the AOJ requested that an addendum with the assessment be provided. See 09/15/2020 Exam Request. In the addendum (09/23/2020 C&P Exam) the clinician opined the Veteran’s additional loss of ROM during her reported flares was estimated to be 5 to 10 degrees throughout all planes of ROM of the lumbar spine. The clinician noted further that it is feasible the Veteran experienced significant flares inhibiting her ability to perform activities of daily living. Deducting an additional 10 degrees would mean that the Veteran’s ROM on forward flexion during flares would be 0 to 84 degrees, which is still greater than 0 to 30 degrees. That would also be the case if an additional 10 degrees loss for repeat use over time is further deducted, which would result in motion from 0 to 74 degrees. LOM to that extent still warrants no more than the assigned 20 percent rating. 38 C.F.R. § 4.71a, General Formula, DC 5342. In her response to the Supplemental Statement of the Case (SSOC), the Veteran asserted that the clinician did not actually review the June 2008 VA examination report when she opined that the additional loss of ROM was 5 to 10 degrees. The Veteran pointed to the clinician’s notation of her, the Veteran’s, reported subjective symptoms and asserted that if the clinician actually reviewed the June 2008 examination report, the assessment would have been more than an additional 5 to 10 degrees. See 10/14/2020 VA 21-4138. The Veteran’s representative echoes her position. The representative asserts that the clinician’s addendum contradicted her initial report. Specifically, in the initial report the clinician noted that the Veteran’s incapacitation during flares was that she had no mobility, whereas in the addendum the clinician assessed an additional loss of ROM of 5 to 10 degrees. The representative asserts that the Board should consider loss of mobility as the more favorable assessment and find that the Veteran’s ROM on forward flexion was 0 to 30 degrees or less, which meets the criteria for the maximum rating of 40 percent. See 01/07/2021 Appellate Brief, P. 4. The Board finds that both the Veteran and her representative misapplies the two reports. Indeed, the Veteran’s specific description of her flares take precedence over the general reference to her having “no mobility.” In the 2008 examination report, the Veteran initially described her flares as constant spasms in her middle and lower back that bothered her whenever she sat, did housework, or lifted, and that she was always in pain. On lifting, her pain increased in severity from 6-7/10 to 8-9/10; and, during those flares, it was hard to walk. See 06/25/2008 VA Examination, 2nd Entry, P. 5-6. The Board finds that the Veteran’s specific description of the symptoms of her disability during flares did not show her incapacitation involved a complete loss of mobility or ROM. The representative asserts essentially that the Veteran’s symptoms during a flare-up are comparable to ankylosis. However, even when considering the functional limitation during a flare-up, the evidence of record shows that the Veteran’s symptoms did not more nearly approximate fixation of a spinal segment in neutral position (zero degrees). This is demonstrated by the Veteran’s more specific description of her functionality during flares, set forth earlier. The Board finds that the weight of the evidence shows that her “incapacitation” manifested in difficulty moving, performing housework, and lifting items, and did not involve an actual loss of all mobility. Based on that degree of severity, the clinician opined that the additional loss of ROM was 5 to 10 degrees. The Board, of course, applies the high end of the range, 10 degrees. 38 C.F.R. § 4.3. The Court’s decision in Sharp anticipated that an examiner’s opinion or assessment would not be accurate to a mathematical certainty but, instead, would be a clinician’s best estimate based on knowledge, clinical experience, and a veteran’s reported history. That is why the Court mandates the assessment even in the absence of direct clinical observation during a flare-up or repeat use over time. This is especially so the case in the Veteran’s case, as the clinician was asked to do a retroactive assessment. In response to the Board’s instruction in the 2018 remand, the clinician noted a confidence factor of 4 out of a maximum of 5. Hence, the Board finds that the weight of the evidence of record supports the clinician’s assessment of an additional loss of ROM on forward flexion of 5 to 10 degrees. The Board is aware that the clinician noted the loss to be in all planes of ROM, but spine LOM ratings for ratings greater than 20 percent are based solely on forward flexion. Based on all the above discussion of the evidence of record, the Board finds that the preponderance of the evidence is against a rating higher than 20 percent for the chronic orthopedic symptoms of the Veteran’s lumbar spine DJD for the period prior to March 10, 2014. 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, General Formula, DC 5242. Since the preponderance of the evidence is against the claim for a higher rating, there is no reasonable doubt to resolve. See Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); see also 38 C.F.R. § 4.3. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. T. Snyder 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.