Citation Nr: 21063351 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-05 962 DATE: October 14, 2021 ORDER Entitlement to a rating in excess of 20 percent for a back disability is denied. FINDING OF FACT The preponderance of the evidence shows that the Veteran's back disability is not manifested by adverse symptomatology that equates to at least forward flexion of the thoracolumbar spine being 30 degrees or less nor ankylosis even when considering her complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups; it is not manifested by incapacitating episodes that required bed rest prescribed by a physician and treatment by a physician having a total duration of at least 4 weeks during a 12-month period; and it is not manifested by adverse neurological symptomatology in either lower extremity, at any time during the appeal. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for a back disability have not been met at any time during the appeal. 38 U.S.C. §§ 1155, 5100, 5107; 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 5235 to 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service with the United States Army from October 1989 to March 1994. In a January 2019 decision, a Veterans' Law Judge other than the undersigned issued a Board of Veterans' Appeal (Board) decision that denied a rating in excess of 20 percent for a back disability. The Veteran appealed the January 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2019 order, that incorporated the parties Joint Motion for Remand (JMR), the Court vacated and remanded the Board's January 2019 decision. In March 2020 and February 2021, the Board remanded the appeal. The Concerns Raised by the JMR and Post-Remand Compliance As to the concerns raised in the JMR and post-Remand compliance, the Board finds that the post-remand development substantially complied with both because it finds that the VA examinations and/or opinions obtained in August 2020 and April 2021 provide all needed information to rate her back disability under all applicable rating criteria to include range of motion studies that considered her complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups as well as which allows the Board to determine if she has any residual adverse neurological symptomatology. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order); Sharp v. Shulkin, 29 Vet. App. 26 (2017); and Correia v. McDonald, 28 Vet. App. 158 (2016). The Board also finds that the post-Remand development substantially complied with the Remands because all identified and available VA and private treatment records were obtained and associated with the claims file. See 38 U.S.C. § 5103A(b); Stegall, supra. Therefore, the Board finds that further delay by remanding the appeal to provide the Veteran with a new VA examination or to obtain additional medical records is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Further development or analysis does not serve the interests of the Veteran or the VA. The Increased Rating Claim The Veteran claims, in substance, that she is entitled to a higher rating for her service-connected back disability at all times during the pendency of the appeal. 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. See 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. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Furthermore, in Jones 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. 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's back disability is rated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5242-5237. In this regard, the General Rating Formula for Disease and Injuries of the Spine provides that with or without such symptoms as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, provides a 10 percent rating if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees, the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or a vertebral body fracture with loss of 50 percent or more of the height; a 20 percent rating if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, if the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, 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 if forward flexion of the thoracolumbar spine being 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating if there is unfavorable ankylosis of the entire thoracolumbar spine; and 100 percent rating if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 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. Moreover, the Formula for Rating Intervertebral Disc Syndrome provides a 10 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 1 week during the past 12 months, a 20 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 2 weeks during the past 12 months, a 40 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 4 weeks during the past 12 months, and a 60 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Diagnostic Code 5243 defines an incapacitating episode as one where the Veteran has physician prescribed bed rest. 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. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2016); 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. See 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. See 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. Therefore, 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 arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the United States Court of Appeals for Veterans Claims (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. In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court held that 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. 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. Lastly, in Chavis v. McDonough, No. 18-2928 (2021) the Court held that ankylosis of the spine may be shown based on symptoms of fixation of the joint equivalent to ankylosis. i. The Amended Rating Criteria Initially, the Board notes that during the pendency of the appeal VA amended some of its' criteria for rating musculoskeletal disabilities effective February 7, 2021. See 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021). In this regard, as of February 7, 2021, the only amendment to Diagnostic Code 5243 is the notation that it should be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Therefore, the Board finds that the amendment does not change how this Veteran's back disability is rated. Accordingly, the Board finds that a Remand to provide the Veteran with notice of the new rating criteria and have the claim adjudicating applying it is not required. See Sabonis, supra. ii. Correia, supra, and Sharp, supra. Next, in adjudicating below whether the Veteran meets the criteria for a higher evaluation for her back, the Board has not overlooked the Court's holdings in Correia, supra, and Sharp, supra. Tellingly, the Board finds that the record is adequate to address the concerns raised by the Court in both these cases because the August 2020 and April 2021 VA examiners specifically considered the range of motion of the thoracolumbar spine taking into account the Veteran's complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups. Therefore, the Board finds that further delay by remanding this issue to provide the Veteran with a new VA examination is not required. See Sabonis, supra. iii. The Merits of the Back Claim With the above criteria in mind, the Board notes that under the General Rating Formula for Disease and Injuries of the Spine the Board finds that even when considering the Veteran's complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, DeLuca, Jones, and Chavis as well as when considering the appellant's competent reports of her observable adverse symptomatology (see Davidson, supra), she does not meet the criteria for at least the next higher, 40 percent, rating at any time during the appeal because forward flexion of the thoracolumbar spine was not 30 degrees or less because it was 70 degrees at the July 2014 VA examination, 60 degrees at the September 2015 VA examination, 55 degrees at the August 2020 VA examination, and 55 degrees at the April 2021 VA examination. See 38 C.F.R. § 4.71a, Diagnostic Code 5235-5242; Fenderson, supra; Hart, supra. The Board also notes that the treatment records do not document flexion being 30 degrees or less as well as finds that the Veteran is not competent to provide such a finding because it is medical in nature. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions); Davidson, supra. Consequently, the Board finds that a higher evaluation is not warranted for the Veteran's service-connected back disability under the General Rating Formula for Disease and Injuries of the Spine due to limitation of motion at all times during the appeal. Hart, supra; Fenderson, supra. Similarly, the Board finds that even when considering the Veteran's complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, DeLuca, Jones, and Chavis as well as when considering her competent reports of her observable adverse symptomatology (see Davidson, supra), she does not meet the criteria for at least the next higher, 40 percent, rating under the General Rating Formula for Disease and Injuries of the Spine due to adverse symptomatology that equates to ankylosis because the record is uniform in documenting at least some back motion and ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992); Also see Owens, supra. In fact, even at its' worst, the 55 degrees of flexion the Veteran had at her most recent VA examinations was still more than 50 percent of normal flexion (i.e., 90 degrees). See 38 C.F.R. § 4.71a, Plate V. Moreover, the July 2014, September 2015, August 2020, and April 2021 VA examiners specifically opined that the back was not ankylosed, and the Board finds that these medical opinions are not contradicted by any other medical evidence of record. See Colvin, supra. The Board also finds that the Veteran is not competent to provide the missing diagnosis of ankylosis because this is a medical finding. See Davidson, supra. Moreover, the Board finds the VA examiners opinions as to the Veteran's adverse symptomatology more probative than any lay claims to the contrary even though the symptomatology is observable by a lay person because the examiners have greater medical training. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). Consequently, the Board finds that a higher evaluation is not warranted for the Veteran's service-connected back disability under the General Rating Formula for Disease and Injuries of the Spine due to ankylosis at all times during the appeal. Hart, supra; Fenderson, supra. Likewise, the Board finds that the Veteran does not meet the criteria for a rating in excess of 20 percent for her back disability under the Formula for Rating Intervertebral Disc Syndrome at any time during the appeal period because the record, including the July 2014, September 2015, August 2020, and April 2021 VA examinations, are negative for her having physician ordered bedrest. See Colvin, supra. In this regard, the Board finds that the Veteran is not competent to provide the missing evidence of having physician ordered bedrest because this is a medical finding and she does not have the required training and the medical the records do not show she ever had a total of at least 4 weeks of incapacitating episodes during any 12-month period during the pendency of the appeal. See Davidson, supra. Consequently, the Board finds that a higher evaluation is not warranted for the Veteran's service-connected back disability under the Formula for Rating Intervertebral Disc Syndrome at all times during the appeal. Hart, supra; Fenderson, supra. Given the above, the Board also finds that the criteria for a rating in excess of 20 percent for the Veteran's back disability is not met at any time during the appeal under 38 C.F.R. § 4.71a, Diagnostic Code 5242-5237. See Fenderson, supra; Hart, supra; Davidson, supra; Colvin, supra. Lastly, the Board notes that under 38 C.F.R. § 4.71a, Note (1), appellants with back disability that also causes residual adverse neurological symptomatology are entitled to a separate rating for that symptomatology. Moreover, the Board most recently Remanded the appeal to reconcile the VA treatment records that document complaints, diagnoses, or treatment for adverse neurological symptomatology since 2016 with the July 2014, September 2015, and August 2020 VA examiners opinions that she did not have adverse neurological; symptomatology and/or radiculopathy due to her service-connected back disability. Tellingly, the post-Remand VA examiner in April 2021 opined, in substance, that the Veteran had no residual adverse neurological symptomatology in her lower extremities due to the service-connected back disability. Similarly, the July 2014, September 2015, August 2020, and April 2021 VA examiners opined that the neurological portion of the examinations were unremarkable and/or the appellant did not have any signs or symptoms of radiculopathy with normal muscle strength, reflex, and sensory examinations. Moreover, the Board finds the VA medical opinions more probative than the VA treatment records. The Board has reached this conclusion because the VA examinations were held for the express purpose of ascertaining if the Veteran's back disability caused adverse neurological symptomatology in her lower extremities and the opinions were based on the results of comprehensive examinations. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators..."), Therefore, the Board finds that preponderance of the evidence shows that the Veteran's back disability does not cause a neurological disability in either lower extremity. See Owens, supra. Accordingly, the Board finds that the current decision need not further address whether the Veteran is entitled to separate ratings for residuals adverse neurological symptomatology because she does not have any due to her service-connected back disability. See 38 C.F.R. § 4.71a, Note (1). Nothing above should be indicated to suggest, in any way, that the Veteran is not having a problem with her back. A 20% disability evaluation will cause the Veteran many problems. The only question is the degree of the problem based on the medical evidence and the criteria for the next higher rating. If the Veteran did not have a problem with her back, there would be no basis for the current rating. Multiple examinations, over several years, now provides evidence against this claim that the Board cannot ignore. There is no basis to assume that another examination will provide a basis to grant this claim. In reaching the above conclusions, the Board has also considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, the Board finds that this doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz, supra; Gilbert, 1 Vet. App. at 55-56. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.