Citation Nr: 21063852 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-18 662 DATE: October 18, 2021 ORDER An initial rating of 40 percent, but no higher, for the period prior to February 18, 2021, for a low back disability is granted. An initial rating in excess of 40 percent for a low back disability is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the weight of the competent and probative evidence shows that the low back disability is manifested by forward flexion of 30 degrees without favorable ankylosis or the functional equivalent of ankylosis. 2. The weight of the weight of the competent and probative evidence is against finding that the low back disability resulted in unfavorable ankylosis or the functional equivalent of ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 40 percent, but no higher, for the period prior to February 18, 2021, for a low back disability are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5242. 2. The criteria for an initial disability rating in excess of 40 percent for a low back disability are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1989 to October 1996. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. The undersigned left the record open for 60 days. See 7/22/2020 Hearing Transcript. This appeal has been before the Board previously. To assist with adjudication of the matter listed above, the Board will provide a brief, historical summary. In February 2021, the Board remanded the issues of service connection for bilateral hearing loss for the Agency of Original Jurisdiction (AOJ) to schedule a new VA audiological examination to determine the nature and etiology of the Veteran's bilateral hearing loss disability. Additionally, the Board remanded the issue of an increased rating for a lumbar spine disability for a new VA examination since evidence recently associated with the claims file suggested his service-connected disability has worsened since his most recent VA examination. After a March 2021 rating decision considered the record, this matter was returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives as the AOJ afforded the Veteran a VA audiological examination and a VA back (thoracolumbar spine) examination. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Regarding the issue of entitlement to service connection for bilateral hearing loss, a March 2021 rating decision granted service connection for bilateral hearing loss, effective October 14, 2010. As such, this matter is no longer on appeal due to the full grant of the benefit sought and it will not be discussed. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Additionally, the March 2021 rating decision granted an increased rating of 40 percent for the Veteran's lumbar spine disability, effective February 18, 2021. Although an increased rating was granted, the issue remains in appellate status as the maximum schedular rating had not been assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings, which are appropriate in this case. Hart v. Mansfield, 21 Vet. App. 505, 50910 (2007). 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). The Veteran is competent to report symptoms observable by sense and contemporaneous medical diagnoses, but not competent to diagnose or assess the etiology of complex medical disorders. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). The Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). An initial rating of 10 percent for the period prior to February 18, 2021, and in excess of 40 percent, onward, for a low back disability. The Veteran asserts that he is entitled to a higher rating for his low back disability. Specifically, the Veteran, through his authorized representative, asserts he is entitled to a 40 percent disability rating for the entire period on appeal. See 8/18/2021 Appellate Brief, at page 3; see also 6/1/2021 (VA Form 20-0996). Additionally, at the Board hearing, the Veteran testified that he has to get up every 20 to 25 minutes and walk around or his back would start to ache "really bad." Further, he testified that doing yardwork causes flare-ups and his back swells and feels numb. Moreover, sitting for long periods causes flare-ups, stiffness, and aching and numbness down his knees, especially the left side. Finally, he testified that on a couple of occasions, it has been difficult and painful to get out of bed and his back has given out. See 7/22/2020 Hearing Transcript, at pages 3 to 5. Under the General Rating Formula for the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted where the evidence shows 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 30 percent rating is warranted for forward flexion of the cervical spine limited to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The criteria for a 50 percent rating are unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Associated objective neurological abnormalities are rated separately under the appropriate diagnostic code. Id., Note (1). Alternatively, a back disorder can be rated as Intervertebral Disc Syndrome (IVDS) based on incapacitating episodes. Under those criteria, found at Diagnostic Code 5243, a ten percent evaluation requires incapacitating episodes having a total duration of at least one week, but less than 2 weeks during the past 12 months, and 20 percent evaluating requires incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks during the past 12 months. Id. DC 5243. A 40 percent rating is warranted for incapacitating episodes having a total duration of less than six weeks, but more than four weeks and a 60 percent rating is warranted if incapacitating episodes have a total duration of at least six weeks during the past 12 months. There is no corresponding note allowing for the separate evaluation of any associated neurologic abnormalities. 38 C.F.R. § 4.71a. Note (1) to the General Rating Formula for Diseases and Injuries of the Spine directs that rater to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a. "The question of whether a particular medical issue is beyond the competence of a laypersonincluding both claimants and Board membersmust be determined on a case-by-case basis." Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring). In this case, the Board is competent to observe that voluntary range of motion testing is going to be more favorable to the Veteran than involuntary range of motion testing. In DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1592 (32nd ed. 2012), range of motion redirects the reader to "exercise." Passive exercise "is motion imparted to a segment of the body by another individual, machine, or other outside force, or produced by voluntary effort of another segment of the patient's own body." Id. at 658. Active exercise is "motion imparted to a part by voluntary contraction and relaxation of muscles controlling the part." It is reasonable from these definitions to conclude that active motion is the more difficult of the two types of motion to perform because it is done without assistance from external forces, which would be capable of pushing the Veteran's joint farther than he would be able to move it on his own. Therefore, active motion is more favorable to the Veteran, and the results of active motion testing were provided. Similarly, it is reasonable to conclude that non-weightbearing motion is less difficult than weightbearing motion. Therefore, the Board will evaluate the Veteran's range of motion using the available findings of active range of motion and looking at all the relevant medical and lay evidence. The record shows that the Veteran is currently rated at 10 percent, effective October 14, 2010, and at 40 percent, effective February 18, 2021, under DC 5242 of the General Rating Formula for Diseases and Injuries of the Spine. The question for the Board is whether higher or separate ratings are warranted during the period on appeal. Resolving reasonable doubt in favor of the Veteran, the Board finds that a rating of 40 percent, but no higher, for a low back disability is warranted for the entire period on appeal. Turning to the evidence, the Veteran underwent a VA examination in May 2012. He was diagnosed with lumbar degenerative joint disease. Regarding flare-ups, the Veteran reported that he experiences worsening pain (8-9/10) once per week with activities, such as bending, twisting, and lifting and that they last for a day. The objective examination showed that the Veteran had normal range of motion with no pain. Additionally, the examiner noted no additional loss of range of motion after three repetitions. Moreover, the Veteran had lumbar tenderness and no muscle spasms, guarding, muscle atrophy, radiculopathy, ankylosis, neurologic abnormalities, or IVDS. Furthermore, the Veteran had normal muscle strength, sensation, reflexes, and straight leg raising test results. The Veteran used no assistive devices. Finally, the examiner reported no functional impact. See 10/17/2012 C&P Examination. The Board is mindful that although the Veteran reported experiencing flare-ups, the record does not show that the examiner made any attempts to elicit information from the Veteran to determine his range of motion during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017) (holding that when conducting evaluations for musculoskeletal disabilities, VA examiners must inquire whether there are periods of flare-ups and, if the answer is yes, state their severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, per the veteran, to what extent, if any, they affect functional impairment). However, it does not necessarily follow that the examination report is devoid of probative value. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (noting that, "even if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight"). Here, the examination's value is diminished by its failure to provide range of motion measurements and estimates during flare-ups. However, the examiner's documentation of active medical conditions and the Veteran's lay statements remains sound and thus provides limited probative value. The AOJ afforded the Veteran another VA examination in November 2015. He was diagnosed with degenerative arthritis of the spine. Regarding flare-ups, the Veteran reported that he experiences increased pain (9/10) once per week and that it lasts a couple of hours and it is alleviated with stretching and icing. Regarding functional loss, the Veteran reported that he experiences limited function with prolonged driving. The objective examination showed that the Veteran had forward flexion of 85 degrees, extension of 30 degrees, left lateral flexion of 30 degrees, right lateral flexion of 30 degrees, right lateral rotation of 30 degrees, and left lateral rotation of 30 degrees. Additionally, the examiner noted that the Veteran's range of motion did not contribute to functional loss and that he had no pain during examination. Further, the examiner noted no additional loss of range of motion after three repetitions. Moreover, the examiner stated that he was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination would significantly limit the Veteran's functional ability with repeated use over a period of time or flare-ups, because there was no objective evidence. In addition, the Veteran had no back tenderness, muscle spasms, guarding, muscle atrophy, radiculopathy, ankylosis, neurologic abnormalities, or IVDS. Furthermore, the Veteran had normal muscle strength, sensation, reflexes, and straight leg raising test results. Finally, regarding functional impact, the examiner reported that the Veteran would require periodic change of position. See 11/16/2015 C&P Examination. However, the February 2021 Board remand found this examination inadequate. First, evidence recently associated with the claims file suggested that the disability had worsened. Second, although the Veteran reported experiencing flare-ups, the record does not show that the examiner made any attempts to elicit information from the Veteran to determine his range of motion during flare-ups. See Sharp, 29 Vet. App. 26. As such, the Board affords this opinion little weight. At the March 2021 VA examination, the Veteran was diagnosed with degenerative arthritis and IVDS. Regarding flare-ups, the Veteran reported that he regularly experiences a moderate sharp and radiating pain, morning stiffness, and pain on bending and lifting. Regarding functional loss, the Veteran reported that he experiences decreased motion, and he cannot lift over 15 pounds or perform sports, prolonged walking, or hill climbing. The objective examination showed that the Veteran had forward flexion of 40 degrees, extension of 10 degrees, left lateral flexion of 10 degrees, right lateral flexion of 10 degrees, right lateral rotation of 10 degrees, and left lateral rotation of 10 degrees. Additionally, the examiner reported that the Veteran had pain with all range of motion. Regarding passive range of motion, the objective evidence showed it was the same as active range of motion and the Veteran had pain with forward flexion and extension. Further, there was evidence of pain with weightbearing and active and passive motion. The examiner noted that pain causes loss of range of motion after three repetitions, repeated use, and flare-ups, such that he had forward flexion of 30 degrees, extension of 10 degrees, left lateral flexion of 10 degrees, right lateral flexion of 10 degrees, right lateral rotation of 10 degrees, and left lateral rotation of 10 degrees. Moreover, the Veteran had normal muscle strength, reflexes, sensation, and straight leg raising test results, and no crepitus, muscle spasms, muscle atrophy, radiculopathy, ankylosis, IVDS, or neurologic abnormalities. The Veteran had guarding and localized tenderness of the thoracolumbar spine; however, they did not result in an abnormal gait or spinal contour. The Veteran used no assistive devices. Finally, regarding functional impact, the examiner reported that the Veteran can perform no heavy lifting, climbing, or sports, and only occasional bending. See 3/16/2021 C&P Examination. The Board finds the August 2021 VA examination to be adequate for rating purposes, as it is based on an in-person examination of the Veteran, objective testing, and medical expertise. The Board finds that the medical and lay evidence is sufficient to allow it to render a decision that addresses the Mitchell and DeLuca criteria. Resolving reasonable doubt in favor of the Veteran, the Board finds that the weight of the evidence supports a finding that the Veteran's disability picture is more nearly approximated by a 40 percent disability rating for the entire period on appeal. 38 C.F.R. § 4.3. The Board also finds that the weight of the evidence does not support a finding that the Veteran's disability picture is more nearly approximated by a higher rating than a 40 percent disability rating. The Veteran, per the 2015 and 2021 VA examination reports, did not have no unfavorable ankylosis of the entire thoracolumbar spine nor functional ankylosis. In support, the Board observes that the March 2021 VA examination revealed that the Veteran had normal muscle strength, reflexes, sensation, and straight leg raising test results, and no crepitus, muscle spasms, muscle atrophy, radiculopathy, ankylosis, IVDS, or neurologic abnormalities. The Veteran had limited motion in his back, but he did have some motion. The facts would tend to weigh against a finding of functional ankylosis. In considering the overall evidence, to include what was just discussed, the Board finds that the preponderance of it tends to weigh against a higher rating. The Board has also considered the Deluca and Mitchell factors, and the evidence of record, the Board finds that the current rating already compensates the Veteran for any functional loss due to pain affecting the lumbar spine, to include moderate sharp and radiating pain, morning stiffness, swelling, numbness, pain on bending and lifting, and decreased motion. Deluca, 8 Vet. App. at 204-07. In light of the foregoing, the Board finds that an increased rating, higher than 40 percent, due to functional impairment would not be appropriate under the criteria for 38 C.F.R. §§ 4.40 and 4.45. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.F., 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.