Citation Nr: 21062619 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 18-32 030 DATE: October 8, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for the Veteran's service-connected lumbar spine disability is denied. FINDING OF FACT The Veteran's lumbar spine disability more closely approximates the symptomatology considered for a 10 percent disability rating for the period on appeal. CONCLUSION OF LAW The criteria for establishing entitlement to a disability rating in excess of 10 percent for the Veteran's service-connected lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 5242-5237 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from December 1995 to December 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously denied the Veteran's above claim in a November 2019 decision. The Veteran then appealed to the United States Court of Appeals for Veteran's Claims (Court), and in November 2020 the Court vacated the November 2019 Board decision regarding the increased rating for the Veteran's lumbar spine, granted a joint motion for remand, and returned the case to the Board for action consistent with the joint motion for remand. When this case was last before the Board in April 2021 it was remanded for additional development. Specifically, the RO was instructed to provide the Veteran with a VA examination to address the severity of his claimed lumbar spine and obtain updated VA treatment records. A relevant examination was obtained, and the updated records were associated with the claims file. As such, the Board finds that the AOJ substantially complied with the directives in the April 2021 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased RatingLegal Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of the two evaluations shall 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. See 38 C.F.R. § 4.7. In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. At 54). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. The Board notes that it has reviewed all of the evidence of record, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, with regard to the Veteran's claims. Lumbar SpineLegal Criteria The Veteran's lumbar spine disability was rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242-5237. As relevant to the lumbar spine, under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or a combined range of motion of the thoracolumbar spine 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. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion 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 requires 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 if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. There are several notes set out after the diagnostic criteria, which provide the following: First, associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateroflexion is 0 to 30 degrees, and left and right lateral rotation is 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateroflexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is to 240 degrees. Third, 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 stated in the regulation. Fourth, each range of motion should be rounded to the nearest 5 degrees. Intervertebral disc syndrome is evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in a higher evaluation. In relevant part, the Veteran's IVDS can be rated at 20 percent disabling with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the last 12 months. A 40 percent rating with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Finally, a 60 percent rating for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For the purposes of evaluations 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. Analysis The Veteran contends that he is entitled to a disability rating in excess of 10 percent disabling for his service-connected lumbar strain with degenerative arthritis. For the reasons below, the Board finds that the Veteran is not entitled to a disability rating in excess of 10 percent for the period on appeal. Regarding the Veteran's claim for an increased disability rating, he was previously provided with February 2017 and April 2018 VA Back Conditions examinations. Based on these examinations, the Board denied the Veteran's claim for an increased rating in November 2019. However, as noted above, the Court determined that these examinations were inadequate for rating purposes and in November 2020 remanded the decision to the Board. In response to the Court's remand, the Boardin an April 2021 decision remanded the issue on appeal for an adequate examination. In response to the Board's April 2021 remand, the Veteran was provided with a July 2021 VA Back condition examination. The examiner indicated that the Veteran's range of motion was as follows: forward flexion of the thoracolumbar spine to 75 degrees; extension to 15 degrees; right and left lateral flexion to 15 degrees; and right and left rotation to 15 degrees. The examiner noted that the Veteran's passive range of motion was the same as his active range of motion. Further, the examiner noted that the Veteran experienced pain on forward flexion, lateral rotation and lateral flexion. The pain was noted on both passive and active range of motion but did not cause additional functional loss. Muscle spasm was reported that did not result in abnormal gait or abnormal spinal contour. No guarding or ankylosis of the spine was reported. The examiner did find that the Veteran had IVDS, but with no incapacitating episodes in the past 12 months. The Veteran did not report flare-ups and did not have additional functional loss after 3 repetitions, or after repeated use over time. The Board has considered the evidence of record. The Board notes that the July 2021 VA examiner is a medical professional, competent to measure motion, determine physical characteristics and deformities, and opine as to the severity of the Veteran's lumbar spine. There is no evidence that the VA examiner is not credible. Moreover, the examiner provided an analysis based upon both subjective and objective information to form an opinion based upon medical expertise. The Veteran's VA treatment records indicate that he sought treatment for his lower back pain. However, the treatment records do not contain information which differs significantly from the above noted VA examinations. No reports of ankylosis, incapacitating episodes of IVDS, or severe spasm/guarding are reported. Further, the Board has considered the Veteran's lay contentions and finds the lay statements are competent insofar as they report observable symptoms, such as pain. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the extent the Veteran asserts that his current disability entitles him to a higher disability rating, such statements are inconsistent with, and therefore less probative than, the objective medical evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Indeed, with regard to the actual degree of the Veteran's impairment, the objective findings contained within the July 2021 VA examination report is more probative because it is based on actual range of motion testing in an examination setting. This medical evidence preponderates against the notion that the Veteran's limited motion warrants a higher rating than currently assigned. The Board has considered whether the requirement of ankylosis can be met with evidence of the functional equivalent of ankylosis (i.e. functional immobility of the joint) during a flare-up. Chavis v. McDonough, No. 18-2928, (Vet. App. Apr. 16, 2021). However, the evidence does not indicate that immobility of the spine during flare-ups. On the contrary, the Veteran did not report flare-ups at his VA examination, and on all recorded assessments, the Veteran was noted to retain some range of lumbar motion. The Board finds that the requirement of ankylosis cannot be met with evidence of the functional equivalent of ankylosis in this particular case. Thus, upon careful consideration of the evidence, the Board determines that a disability rating in excess of 10 percent for the Veteran's lumbar spine disability is not warranted during the period on appeal. The 10 percent rating adequately contemplates the Veteran's limitation of motion due to pain. A rating in excess of 10 percent would require forward flexion less than 60 degrees, combined range of motion of the thoracolumbar spine less than 120 degrees, muscle spasm or guarding severe enough to result in abnormal gait or spinal contour, ankylosis of the Veteran's spine, or IVDS with incapacitating episodes having a total duration of at least 2 weeks during the last 12 months. However, such severity of symptoms is not shown by the probative evidence of record. The Board has carefully considered the probative evidence of record, including consideration of any additional functional impairment reported by the Veteran during flare-ups or upon repeated use over time, including any additional limitation of motion. Given the above, and following a review of the evidence of record, the Board concludes that the most probative evidence of the record shows that the Veteran does not meet the requirements for a higher disability rating during the period on appeal For these reasons, the Board finds that a disability rating in excess of 10 percent for the Veteran's lumbar spine disability is not warranted. Therefore, the claim must be denied. The evidence preponderates against an increase, so reasonable doubt provisions are inapplicable. 38 C.F.R. § 3.102. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.