Citation Nr: 21063690 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 18-31 490 DATE: October 15, 2021 ORDER Entitlement to a rating in excess of 20 percent for old fracture deformity of the pubic symphysis is denied. FINDING OF FACT The Veteran's old fracture deformity of the pubic symphysis has been manifested by forward flexion of the thoracolumbar spine to, at worst, 40 degrees. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 20 percent for old fracture deformity of the pubic symphysis have not been met. 38 U.S.C. §§1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.40, 4.45, 4.71(a), Diagnostic Code 5236. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active-duty service in the United States Army from October 1979 to December 1986. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision issued by a VA Regional Office (RO). By way of background, in an October 2019 decision, the Board denied entitlement to a rating in excess of 20 percent for an old fracture deformity of the pubic symphysis. However, the Board did grant increased ratings of 20 percent (each) for radiculopathy of the right and left lower extremities affecting the sciatic nerve. An additional separate 10 percent rating was also granted for right lower extremity radiculopathy affecting the femoral nerve, and the Board also granted a separate 10 percent rating for painful motion of the right hip. The Veteran subsequently appealed this decision to the U.S. Court of Appeals for Veterans Claims (CAVC) and, in a February 2021 Memorandum Decision, CAVC vacated and remanded the Board's October 2019 as to the Board's denial of an increased rating for an old fracture deformity of the pubic symphysis. Specifically, CAVC found the Board failed to provide a specific finding as to whether the September 2017 and May 2018 VA examinations for the Veteran's claimed condition were adequate for adjudicative purposes prior to relying on them for the Board's denial. The case has since returned to the Board for appellate consideration. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), 38C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C. §1155; 38C.F.R. §§3.321(a), 4.1. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. §4.7. Otherwise, the lower rating will be assigned. The evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38C.F.R. §4.14. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. §4.3; Gilbert v. Derwinski, 1Vet. App.49 (1990). In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. §4.45. Painful, unstable, or maligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. §4.59; Burton v. Shinseki, 25 Vet. App.1 (2011) (holding that 38 C.F.R. §4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App.32, 43 (2011). As an initial matter, the Board notes that the effective date of an award of increased compensation is the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within one year from such date; otherwise, it is the date of receipt of the claim. 38 U.S.C. §§5110(b)(2); 38 C.F.R. §3.400(o)(2); see also Hazan v. Gober, 10 Vet. App.511 (1997). In this case, the Veteran's request for increased ratings for her service-connected old fracture deformity of the public symphysis was received on September 14, 2017. A review of the Veteran's medical records for the year preceding that date do not show that, at any point within that one-year period, it was objectively shown or factually ascertainable that an increase in the Veteran's disabilities occurred. Therefore, the focus of this decision will be on the body of evidence added to the record subsequent to the Veteran's September 14, 2017 claim for increase. The Veteran's service-connected old fracture deformity of the pubic symphysis is evaluated at 20 percent under 38 C.F.R. §4.71(a), Diagnostic Code (DC) 5236. The Board finds that a rating in excess of 20 percent is not warranted for her service-connected old fracture deformity of the pubic symphysis. Under DC 5236 sacroiliac injury and weakness is evaluated under the General Rating Formula for Disease and Injuries of the Spine, 38 C.F.R. §4.71(a), Diagnostic Codes 5235 to 5243. The Spine is evaluated under these rating criteria with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 20 percent disability 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. 38 C.F.R. §4.71(a). In September 2017, the Veteran was afforded a VA examination for back conditions. The Veteran had been diagnosed with old fracture deformity of the pubic symphysis and radiculopathy of the right and left lower extremities. The Veteran reported that she felt pressure in her lower back, it was hard for her to drive any great distance, and she could only walk 2 blocks before she had back pain. She experienced pain into her buttocks and down her knees, and the pain increased when she was "up and about." The Veteran reported having flare-ups of "more pain" in her back when it was cold and rainy outside. She had to use a cane due to pain; sometimes, her leg would "give away." She took tramadol, naproxen, and cyclobenzaprine to help manage the pain. In the past, she had an epidural steroid injection that helped for several months. Initial range of motion testing of the thoracolumbar spine revealed forward flexion to 40 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. Range of motion itself contributed to functional loss in that her disability made it hard for her to get out of the car and bend. Pain was noted in the forward flexion and extension. The VA examiner noted that the Veteran had pain over her right sacroiliac joint area of a mild to mild-moderate degree due to the fracture. There was pain with weight-bearing. The Veteran was able to perform repetitive-use testing with at least three repetitions, but there was no additional loss of function or range of motion. The Veteran was not examined immediately after repetitive use over time; however, the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner selected "pain" as the cause of the Veteran's functional loss with repeated use over time, and described her functional loss as limiting her forward flexion to 40 degrees. The VA examiner did not examine the Veteran during a flare-up; however, the VA examiner noted that the examination was medically consistent with the Veteran's statements describing functional loss during a flare-up. Again, the examiner described the functional loss during a flare-up to be flexion limited to 40 degrees. The VA examiner noted that the Veteran had guarding that did not result in abnormal gait or abnormal spinal contour. The Veteran had underlying pain from her pelvic fracture and involvement of her lower back (pain mostly over sacroiliac joint). She had "very limited range of motion due to pain, with" guarding "especially in flexion." The Veteran's disability was further characterized by less movement than normal, disturbance of locomotion, interference with sitting, interference with standing (with notation that she had to alternate sitting and standing). Further, the VA examiner reported that the Veteran did not have ankylosis or intervertebral disc syndrome (IVDS). Moreover, the 2017 VA examiner noted that the Veteran had radiculopathy. On testing, she had full, symmetrical muscle strength throughout. She had normal deep tendon reflexes at both ankles and knees. She had a normal sensory (light touch) evaluation of both lower extremities. She had negative straight leg raise tests. The Veteran reported constant pain, paresthesias/dysesthesias, and numbness to a mild degree in both lower extremities. The examiner found that the Veteran's radiculopathy affected her sciatic nerve roots to a mild degree. A September 2017 VA orthopedic note included that the Veteran had hip pain with standing and walking. She noted progression of her hip pain over the years. She was noted to additionally have knee pain. She had an antalgic gait. In October 2017, the Veteran had left knee pain with large knee effusion drained. She was taking naproxen. She was working as a mail carrier, and the job involved getting in and out of vehicles and carrying packages. She had modified her route due to her knee pain. She also had right lumbar pain and right hip pain. A January 2018 primary care record noted that the Veteran had "less pain in hip in past couple months" as she had changed roles at work and had not been standing on her feet all day. In her March 2018 notice of disagreement (NOD), the Veteran asserted that her pelvic and back pain had gotten worse. Subsequently, in May 2018, the Veteran was afforded another VA back examination. The Veteran reported that she had pressure and aching pain in her lower back and both hips, which radiated down her right leg. She also had stiffness. She went to the chiropractor for some relief. She took gabapentin, diclofenac, naproxen, and cyclobenzaprine for relief of the pain. The Veteran reported flare-ups from prolonged sitting, walking, or standing. The functional impact of the flare-ups was that she was "unable to sit, stand, or walk for prolonged periods. She states she constantly moves at night due to being uncomfortable." Initial range of motion testing revealed forward flexion to 80 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. There was pain noted in the forward flexion, extension, right lateral flexion, and left lateral flexion. The Veteran had objective evidence of spinal and paraspinal tenderness to the mid and lower back of a moderate degree related to degenerative disc disease. There was evidence of pain on weight-bearing. The VA examiner reported that the Veteran was able to perform repetitive-use testing; however, there was no additional loss of function or range of motion after three repetitions. Also, the Veteran was not being examined immediately after repetitive use over time or during a flare-up of symptoms. The examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time or during a flare-up. The examiner reported that pain caused functional loss but was not able to describe the loss in terms of range of motion due to the "variability in the Veteran's symptoms and functional loss of the lumbar spine was such that providing range of motion during a typical flare-up or after repetitive use over time was not possible." Further, the VA examiner reported that the Veteran did not have ankylosis. Although the examiner reported that the Veteran had IVDS, the Veteran did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The functional impact of her chronic subluxation of the right sacroiliac joint, status post pelvic fracture, with posttraumatic arthritis and degenerative disc disease was that she was "unable to sit, stand, walk or perform other weight-bearing activities for extended periods of time." The VA examiner found that the Veteran had radiculopathy. She reported severe intermittent pain of the right lower extremity and moderate intermittent pain of the left lower extremity. She reported severe paresthesias and/or dysesthesias and numbness in the right lower extremity. On testing, she had normal and symmetrical muscle strength of the lower extremities. She had normal deep tendon reflexes of the ankles and knees. On sensory evaluation, she had decreased light touch sensation of the bilateral thighs/knees, lower legs/ankles, and feet/toes. She had negative straight leg raise tests. The nerve roots involved were the bilateral sciatic nerves and the right femoral nerve. The examiner found that the degree of severity was mild bilaterally. In May 2018, the Veteran was additionally afforded a VA hip and thigh examination. She was noted to have an old fracture deformity of the pubic symphysis. She was again noted to be unable to sit, stand, walk or perform other weight-bearing activities for extended periods of time, and she reported flare-ups of symptoms with prolonged walking or sitting. She had right hip flexion to 60 degrees, extension to 20 degrees, abduction to 20 degrees, adduction to 20 degrees, external rotation to 45 degrees, internal rotation to 30 degrees. She was noted to have mild diffuse tenderness due to the old fracture. She had left hip flexion to 80 degrees, extension to 20 degrees, abduction to 30 degrees, adduction to 25 degrees, external rotation to 50 degrees, and internal rotation to 40 degrees. The examiner noted that there was mild diffuse tenderness, but that it was not related to the prior fracture as that was focused on the right side. After repetitive range of motion testing, she did not have a change in her hip ranges of motion. The examination was not conducted after a period of repetitive use over time, and the examiner was unable to describe any functional loss in range of motion due to "variability" in symptoms. The same answers were provided regarding her flare-ups. She was noted to have a limited range of motion of both hips due to "fear of pain." She had full muscle strength bilaterally. She did not have malunion or nonunion of femur, flail hip joint or leg length discrepancy. The examiner noted that the Veteran's passive range of motion was the same as her active range of motion, and that there was objective evidence of pain with weight-bearing. The Board notes at the outset that the VA examinations of record, taken in conjunction with records of medical treatment, are an adequate basis upon which to determine the extent and severity of the Veteran's old fracture deformity of the pubic symphysis. Although the May 2018 examiner did not perform a passive range of motion test, the September 2017 examiner did perform all necessary testing and the Veteran has not alleged any additional functional loss or pain under circumstances that might reveal additional limitation of motion during passive motion testing that was recorded in 2017. Moreover, the examiner adequately explained why passive range of motion testing was not necessary, stating that passive range of motion testing could not "be performed or is not medically appropriate". Lastly, the Board finds the 2017 examination captured the most severe manifestation of the Veteran's condition showing forward flexion to 40 degrees with passive range of motion being noted as the same as upon active range of motion testing. The Veteran was therefore given passive range-of-motion testing while her condition was at its worst and the results of the passive range-of-motion testing showed the same results as active range of motion. Additionally, both examinations properly reported testing results for pain in both weight bearing and non-weight bearing. When the Veteran reported flare-ups, VA examiners determined the additional loss of function in terms of range of motion. Given the totality of the information, including the Veteran's own descriptions of her limitations, the Board finds that the requirements of DeLuca, Sharp, and Correia have been adequately addressed. DeLuca v. Brown, 8 Vet. App. At 202; Sharp v. Shulkin, 29 Vet. App. at 32; Correia v. McDonald, 28 Vet. App. at 158. Entitlement to a rating in excess of 20 percent for old fracture deformity of the pubic symphysis is denied. After a through review of the evidence of record, the Board finds that a disability rating in excess of 20 percent for an old fracture deformity of the pubic symphysis is not warranted. The evidence shows that the Veteran's disability caused her to have pressure and aching pain in her lower back and both hips, which radiated down. She also experienced pain into her buttocks and down her knees. Her flare-ups prevented her from prolonged sitting, standing, and walking. The Veteran could only walk for about 2 blocks before she had back pain. Also, the Veteran had to regularly use a cane. The Veteran took medicine to help manage her symptoms. Under the General Rating Formula for Diseases and Injuries of the Spine, the Veteran's back disability would need to exhibit unfavorable ankylosis of the entire spine, unfavorable or favorable ankylosis of the entire thoracolumbar spine, or forward flexion of the thoracolumbar spine limited to 30 degrees or less in order for a rating in excess of 20 percent to be assigned. According to the Veteran's September 2017 and May 2018 VA examinations, the Veteran did not have ankylosis. The Board considered whether her functional limitations were the "functional equivalent" of ankylosis pursuant to Chavis v. McDonough, but the preponderance of the evidence does not support such a finding. See 34 Vet. App. 1 (2021). That is, the Veteran's disability does not render her entirely immobile and certainly not in an unfavorable spinal position. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note(5) (indicating that for VA compensation purposes, unfavorable ankylosis is 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) always represents favorable ankylosis). Rather, initial range of motion testing during the September 2017 VA examination revealed forward flexion to 40 degrees for the Veteran's back. Initial range of motion testing during the May 2018 VA examination revealed forward flexion to 80 degrees for the Veteran's back. The Board notes the Veteran's representative's argument that the Veteran's improved range of motion was a result of prescription pain medication; however, there is no competent evidence to support this assertion. In 2015, the Veteran's flexion was also to 80 degrees, and she had also argued she had increased pain at that time. In 2017, she was prescribed additional pain medication due to knee disorders and significant knee pain. There are limited treatment records related to the Veteran's disability in her VA treatment records. The 2017 examination showing forward flexion to 40 degrees is the poorest range of motion shown by the medical evidence. That her other two range of motion tests showed flexion to 80 degrees would tend to indicate that the 40 degrees shown in 2017 was an example of her limitations with repeated use. Treatment records from 2017 showed that the Veteran continued to work delivering mail, with additional knee disability symptoms due to the physical demands of the job. In 2018, she had a new position with less frequent standing. Although the Veteran has reported flare-ups that result in an inability to stand or walk for prolonged periods, the flare-ups have not been described as resulting in a decreased ability for forward flexion. Additionally, treatment records indicated that physical therapy improved her symptoms. Given the totality of the competent medical evidence, a rating in excess of 20 percent would not be warranted under the General Rating Formula for Disease and Injuries of the Spine for the Veteran's service-connected old fracture deformity of the pubic symphysis. The Board has also considered other applicable rating criteria for the Veteran's service-connected old fracture deformity of the pubic symphysis. Although the Veteran has been diagnosed with IVDS (see May 2018 VA examination), it has not been shown that the Veteran has had incapacitating episodes during the period on appeal. Therefore, the Veteran's service-connected old fracture deformity of the pubic symphysis would not be assigned a higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Board has also considered the Veteran's lay statements regarding her symptomatology. The Board notes that the Veteran is competent to report observations with regard to the severity of her symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, and 1376-77 (Fed. Cir. 2007). The Board finds these lay statements to be credible and consistent with the ratings assigned. To the extent she argues her symptomatology is more severe, the Veteran's statements must be weighed against the other evidence of the record. Here, the specific examination findings of trained health care professionals and documented medical treatment records are of greater probative weight than the more general lay assertions that a higher rating is warranted. After a review of all the evidence, both lay and medical, the Board finds that a rating in excess of 20 percent is not warranted for the Veteran's service-connected old fracture deformity of the pubic symphysis under the rating criteria associated with the spine. The preponderance of the evidence is against the claim, and there is no doubt to be resolved. See 38 C.F.R. §5107(b) (2012); Gilbert v. Derwinski, 1Vet. App.49 (1990). SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.