Citation Nr: 21062564 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 10-29 765 DATE: October 8, 2021 ORDER The reduction in rating for the Veteran's intervertebral disc syndrome (IVDS) with lumbar stenosis and L5-S1 disc bulging with nerve root irritation (low back disability) was improper, so restoration of the prior 40 percent rating is granted as of January 1, 2009, the date of the reduction. However, entitlement to a rating in excess of 40 percent for this low back disability is denied. FINDINGS OF FACT 1. Effective January 1, 2009, the local Regional Office (RO) decreased the rating for the Veteran's low back disability from 40 to 20 percent; however, giving him the benefit of the doubt, the Board finds that the evidence of record does not show the required actual improvement in his disability that will be maintained in the ordinary course of life and work. 2. That said, his low back disability, at worst, results in forward flexion of his thoracolumbar (thoracic and lumbar) spine to 30 degrees or less or favorable ankylosis of his entire thoracolumbar spine, not instead unfavorable ankylosis of his entire thoracolumbar spine or entire spine (the latter meaning when additionally considering the adjacent cervical segment). CONCLUSION OF LAW The criteria are met for restoration of the 40 percent rating for the Veteran's low back disability effective January 1, 2009; however, the criteria are not met for entitlement to a rating greater than 40 percent for this low back disability at any time under consideration. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5299-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1985 to April 1988. This appeal to the Board of Veterans' Appeals (Board) originated from a December 2008 rating decision by a Department of Veterans (VA) Regional Office (RO), the Agency of Original Jurisdiction (AOJ), decreasing the rating for the Veteran's low back disability from 40 to 20 percent prospectively effective as of January 1, 2009. In November 2015, the Veteran testified at a videoconference hearing before a Veterans Law Judge of this Board. A transcript of that hearing is of record. That Judge since has retired from the Board. Although given the opportunity, the Veteran elected in August 2021 not to have another hearing before a different Judge that ultimately would decide this appeal. In January 2016, August 2018, and December 2020, the Board remanded these clams back to the RO (AOJ) for further development and consideration including most recently to obtain relevant treatment records (VA and private) and then to readjudicate these claims in light of this additional evidence. There since has been the required compliance, certainly the acceptable substantial compliance, with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 1. The propriety of the reduction in rating for the Veteran's low back disability In any rating reduction case, it is necessary for the Board to determine whether, based upon review of the entire recorded history of the condition, the evidence reflects an actual change in the disability; whether the examination reports reflecting a change are based upon thorough examinations; and whether any improvement "actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work." See Murphy v. Shinseki, 26 Vet. App. 510, 517 (2014), citing 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13. Certain VA benefits recipients are afforded greater protections from rating changes. 38 C.F.R. § 3.344(a) and (b) provide that cases affected by a change in medical findings will be addressed as to maintain the greatest degree of disability rating stability, consistent with the laws governing disability compensation and pension. 38 C.F.R. § 3.344(c) specifies that these considerations are required for ratings consistent for five years or more at the same level and do not apply to disabilities that have not become stabilized and are likely to improve. At the time of the reduction, the 40 percent rating had been in effect for over 5 years, from April 2003 to January 2009, so the provisions of 38 C.F.R. § 3.344 apply. Further and crucially, the December 2008 rating decision on appeal does not indicate the Veteran's medical record other than one July 2011 VA examination was reviewed or considered prior to reducing his low back disability rating. The record reflects that he was unemployed and homeless but receiving treatment for low back pain, nevertheless, throughout 2006 and 2007. The September 2008 VA spine examiner observed visible pain on examination, the Veteran displaying a slow gait, and inability to extend his lower spine. He stated that his unemployment was due in large part to the pain and functional limitations owing to his low back disability. These findings are grossly repeated in the report of a later July 2011 VA spine examination when the examiner recorded that the Veteran declined to complete the requested range of motion measurements because he did not want to aggravate his symptoms. The examiner indicated the Veteran was uncooperative but also unwilling to aggravate his disability for the sake of that examination. Thus, when considering the entire medical record from the three years immediately preceding the January 2009 reduction in rating, there is not the required confirmatory evidence of actual improvement in the Veteran's low back disability, including in terms of any actual improvement in his ability to function under the ordinary conditions of life and work. Faust, 13 Vet. App. at 350. When a disability rating is reduced without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). Therefore, the Veteran's 40 percent rating is reinstated effective January 1, 2009. 2. Entitlement to a rating higher than 40 percent for this low back disability The Veteran additionally argues that his low back disability warrants a rating even higher than 40 percent and that it has even since before the rating was reduced. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. When evaluating the severity of a disability, it is essential the disability is considered in the context of its entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But, if the factual findings show distinct time periods when the service-connected disability exhibits symptoms that warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings and employed for initial or established ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Per this decision, the Veteran's low back disability is again rated as 40-percent disabling under 38 C.F.R. § 4.71a, hyphenated DC 5299-5243. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. See 38 C.F.R. § 4.27. DC 5243 provides that IVDS is rated either under the General Rating Formula for Diseases and Injuries of the Spine (General Formula of the Spine) or under the Formula for Rating IVDS Based on Incapacitating Episodes (Formula for Rating IVDS), whichever results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS provides that a 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A higher 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. See DC 5243. Note (1) in DC 5243 explains that, for purposes of ratings under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id., at Note (1). Although there is some, limited evidence of bedrest recommended by a provider, the record does not reflect qualifying incapacitating episodes totaling 4 weeks duration (certainly not 6 weeks) and, as such, a higher rating based on the Formula for Rating IVDS is not supported by the evidence of record. The Veteran's condition, thus, will next be considered under the General Formula of the Spine. Under this General Formula of the Spine, a 40 percent rating the Veteran's current rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A higher 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. And an even higher 100 percent rating requires unfavorable ankylosis of the entire spine (that is, when additionally considering the adjacent cervical segment). 38 C.F.R. § 4.71a, General Formula of the Spine, DCs 5235-42. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate DC. Id., at Note (1). Unfavorable ankylosis is defined as "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 (zero degrees) is "always" considered favorable ankylosis. Id., at Note (5). When evaluating musculoskeletal disabilities based on limitation of motion, 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 range-of-motion 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). Considering the entire record, the Board finds that the evidence does not support awarding a rating greater than 40 percent because the Veteran does not have unfavorable ankylosis of entire thoracolumbar spine, so also not of his entire spine. Indeed, he has not alleged, and the record does not otherwise reflect, total fixation essentially, immobilization of his entire thoracolumbar spine or entire spine. Ankylosis contemplates total absence of motion due to "fixation" of a joint. For VA compensation purposes, ankylosis is defined as "immobility and consolidation of a joint due to disease, injury or surgical procedure." See Colayong v. West, 12 Vet. App. 524, 528 (1999); Shipwash v. Brown, 8 Vet. App.218, 221 (1995). He does not have a frozen spine or something akin or "functionally equivalent" to this, including when his symptoms are most problematic such as during a flare up or prolonged or repeated use. See Chavis v. McDonough, No. 18-2928 (April 16, 2021). Moreover, his personal statements and medical records do not reflect limitations regarding his line of vision, chewing, or respiration, including pressure or restriction of his abdomen. And he already has separate ratings for the associated radiculopathy of his left and right lower extremities (sciatic and femoral nerves). The reports of the Veteran's July 2011, July 2016, and May 2018 VA spine examinations all confirm he has reduced range of motion and pain on motion, to varying degrees, as well as guarding resulting in abnormal gait or spinal contour, affecting his locomotion, sitting, and standing. The July 2016 examiner found the Veteran's statements regarding his pain levels not entirely credible, but the examiner's findings are still broadly consistent with other examiners who did not make that same notation. Regardless, none observed unfavorable ankylosis or any of the additional limitations typically associated with unfavorable ankylosis. Moreover, treatment notes dated between August 2019 and July 2021 show the Veteran was seen for complaints of low back pain but also indicate he could sit, stand, and walk without assistance or the appearance of spinal immobility. July 2021 pain management notes reflect movement from sitting to standing with ease, and concurrent mental health providers noted that he has been getting out more and takes great pride in working with athletes at a local boxing club. Again, none of these records suggest any of the additional symptoms or factors, such as restricted line of vision or breathing, which could allude to unfavorable ankylosis. In sum, the evidence of record does not show unfavorable ankylosis of either the entire thoracolumbar spine or entire spine, as required to award a higher rating for this low back disability. The Veteran has not directly alleged any such diagnosis, but he has repeatedly requested a higher low back disability rating. While, even as a layman, he is competent to report observable symptoms such as increased pain and decreased range of motion, his statements that symptoms render him immobile cannot establish unfavorable ankylosis, which is a complex medical condition. See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The question of whether lay versus medical evidence is needed to substantiate a claim is a case-by-case determination and dependent on the type of condition at issue in terms of whether complex versus merely simple. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran's low back disability is multi-faceted, so complex. Thus, the evidence of record does not support awarding a rating higher than 40 percent for the low back disability at any point during the evaluation period on appeal. There is no reasonable doubt to be resolved in the Veteran's favor, as the preponderance of the evidence is against this claim. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Stearns, 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.