Citation Nr: 21065111 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 16-03 065 DATE: October 25, 2021 ORDER Entitlement to a rating higher than 20 percent prior to October 15, 2015, for a lumbar spine disability is denied. FINDING OF FACT Prior to October 15, 2015, the preponderance of evidence is against a finding that the Veteran's back disability manifested with a range of motion limited to 30 degrees or less; additionally, no ankylosis or incapacitating episodes requiring bed rest prescribed by a physician were shown. CONCLUSION OF LAW The criteria for entitlement to a rating higher than 20 percent for a back disability, prior to October 15, 2015, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105(e), 4.1, 4.2, 4.3, 4.21, 4.71(a), General Rating Formula for Diseases and Injuries of the Spine. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1979 to October 1982. The Veteran appeared at an April 2019 hearing before the undersigned Veterans Law Judge at the New York, New York, Regional Office. A hearing transcript is of record. In October 2019, the Board of Veterans' Appeals (Board) denied a rating higher than 10 percent prior to October 15, 2015, for a lumbar spine disability. The Veteran appealed to the United States Court of Appeals for Veterans Claims. In November 2020, the United States Court of Appeals for Veterans Claims granted the Parties' Joint Motion for Partial Remand; vacated that portion of the October 2019 Board decision which denied a rating higher than 10 percent prior to October 15, 2015, for a lumbar spine disability; and remanded the claim to the Board for additional action consistent with the Joint Motion for Partial Remand. It was noted that the Veteran had abandoned the appeal regarding a rating higher than 40 percent for a lumbar spine disability from October 15, 2015, a rating higher than 10 percent for radiculopathy of the right lower extremity prior to October 15, 2015, a rating higher than 10 percent for radiculopathy of the left lower extremity prior to October 15, 2015, a rating higher than 20 percent for radiculopathy of the right lower extremity from October 15, 2015, and a rating higher than 10 percent for radiculopathy of the left lower extremity from October 15, 2015. An August 2021 rating decision assigned a higher 20 percent rating for a lumbar spine disability prior to October 15, 2015. However, as a higher rating is available for the lumbar spine disability, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim for a higher rating remains viable on appeal. AB v. Brown, 6 Vet. App. 35 (1993). The Board previously remanded the claim to the AOJ for further development. In light of the treatment records that have been obtained and associated with the record, the obtaining of the requested medical opinion, and the further adjudicatory actions taken by the AOJ, the Board finds that there has been substantial compliance with the remand requests. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141 (1999). 1. Entitlement to a rating higher than 20 percent prior to October 15, 2015 for a lumbar spine disability The Veteran claims that a service-connected low back disability was more severe than contemplated by the 20 percent rating assigned prior to October 15, 2015. A review of the competent medical evidence of record, to include VA medical records and VA examinations, shows evidence of, essentially, normal range of motion, with no evidence of ankylosis, abnormal gait, or spinal contour. Therefore, the Board finds that a higher rating for the Veteran's back disability is not warranted under the General Rating Formula for Diseases and Injuries of the Spine, and the claim for a rating higher than 20 percent prior to October 15, 2015 must be denied. Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating 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 Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, that does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). When rating musculoskeletal disabilities based on limitation of motion, the Board must consider 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. § 4.40. The Board must also consider whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Nonetheless, even when the background factors listed in 38 C.F.R. § 4.40 or 38 C.F.R. § 4.45 are relevant when rating a disability, the rating is assigned based on the extent to which motion is limited. A separate or higher rating under 38 C.F.R. § 4.40 or 38 C.F.R. § 4.45 is not appropriate. Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016). Disabilities of the spine are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. Intervertebral disc syndrome is rated under the General Formula for Rating Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under the General Rating Formula for Rating Diseases and Injuries of the Spine, 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 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, the 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 an abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a. 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. 38 C.F.R. § 4.71a. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or, unfavorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, Plate V, General Rating Formula for Diseases and Injuries of the Spine, Note (2). The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (4). 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. Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (3). 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 (0 degrees) always represents favorable ankylosis. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (6). Diagnostic Code 5243 provides that intervertebral disc syndrome is to be rated either 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 the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that a 10 percent rating is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (2). During this period, the Veteran was provided with VA examinations assessing the nature and severity of the back disability in February 2012 and July 2015. A February 2012 VA examiner diagnosed degenerative disc disease of the lumbar spine. At that time, the Veteran reported consistent back pain, with reports of decreased motion. On examination, the Veteran's range of motion was recorded as essentially normal, with 90 degrees of forward flexion, and a combined range of motion limited 240 degrees. The Veteran had no spasms, abnormal gait, or ankylosis, with no evidence of incapacitating episodes due to intervertebral disc syndrome. X-rays found severe degenerative changes. The examiner noted pain on movement, with no decreased in range after repetitive motion testing, and no evidence of flare-ups on testing. The examiner noted no effects of incoordination, fatigue, weakness, or lack of endurance on spine function. A July 2015 VA examiner diagnosed degenerative arthritis of the spine, with pain, but no reports of flare-ups. On examination, the Veteran's flexion was noted as normal at 90 degrees, with a combined range of motion of 240 degrees. There was some evidence of pain and tenderness upon palpation, with no reduced range on repeated use. No guarding, muscle spasms, or ankylosis were noted. In June 2021, a VA examiner reviewed the VA examination reports from 2012 and 2015 and found no significant change in disability. The examiner noted that the Veteran's range of motion remained unchanged, and radiculopathy was noted as being mild bilaterally on both examination reports. The examiner stated that prior to the 2015 examination, the examination report from 2012 accurately captured the Veteran's back disability. In July 2021, a VA examiner reviewed the VA examination reports from 2012 and 2015 and noted that after at least three repetitions, there were no noted changes in any of the range of motion findings. Based on the limitations of activities of daily living with flare-ups noted, and as the Veteran reported discontinuing his work as a bouncer, the examiner retrospectively opined that the Veteran's passive and active range of motion findings would have been forward flexion to 90 degrees, extension to 30 degrees, right and left rotation each to 30 degrees, and right and left flexion each to 30 degrees. Pain would be present in all ranges of motion. The examiner stated that there would be no expected change following repetitive use testing. During flare-ups of pain, fatigability, and lack of endurance, the examiner estimated that there would be the following decrease in range of motion forward flexion to 60 degrees, extension to 10 degrees, right and left rotation each to 15 degrees, and right and left flexion each to 15 degrees. For the relevant period prior to October 15, 2015, other than the examinations of record, there is no medical evidence that has shown a worsening condition commensurate to the criteria for a rating in excess of 20 percent, to include in records for VA and private treatment. The Board notes that the Veteran's claims file contains contemporaneous VA and private medical records for the back disability throughout the period. However, those medical records do not show any quantitative increase in severity of the back disability with regard to the objective criteria set out in the rating schedule. The Board recognizes that in a March 2013 VA physical therapy note, the Veteran reported that he experienced severe flare-ups on occasion. However, in July 2021, a VA examiner reviewed the claims file and provided a retrospective opinion regarding the effect of flare-ups on the Veteran's range of motion. The range of motion findings in the retrospective opinion do not meet the criteria necessary for a rating higher than 20 percent. Furthermore, those records do not show additional diagnoses of any conditions or symptoms which would warrant a rating higher than those noted in the VA examinations. Specifically, the evidence does not show that the Veteran had ankylosis or forward flexion of 30 degrees or less. The Board notes that while both VA examinations of record note that the Veteran had back pain, which limited his mobility and activities, those records do not provide the degree or severity of the limitation such that any higher rating could be assigned. However, in June and July 2021, a VA examiner reviewed the records and provided a retrospective opinion regarding the effect of pain and flare-ups on the Veteran's motion. Taken as a whole, the Board finds that the most persuasive evidence is the range of motion measured and estimated at the VA examinations and retrospective opinion noted herein. The Board notes that the outpatient treatment records only detail various treatments for pain, but do not provide any analysis or testing to identify the degree in which the range of motion was affected, or the degree of functional impairment the Veteran had as a result of pain. The Board has also considered the Veteran's reported impairment of function and has considered additional limitations of motion due to pain, incoordination, fatigability, excess motion, weakened motion, or on flare up. Even considering additional limitation of motion or function of the spine due to pain or other symptoms such as weakness, fatigability, pain, or incoordination the evidence still does not show that the back disability more nearly approximates the criteria for a higher rating. On repetitive use testing, range of motion of the spine did not show flexion of the thoracolumbar spine limited to 30 degrees or less, and while the Veteran experienced pain during flare-ups, overall he remained able to function. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The factors that may additionally limit motion and function were considered and assessed by the examination reports. The VA examiners noted less movement than normal, pain on movement, and interference with sitting, standing, and weight-bearing. The Veteran described flare-ups were manifested by increased pain but continued ability to function. The Board finds that pain and reduced range of motion is fully contemplated in the current 20 percent rating assigned. The evidence does not show that any additional factors approximate thoracolumbar flexion to 30 degrees or less. The Board has also considered whether a higher rating could be assigned under the intervertebral disc syndrome formula based on incapacitating episodes. Notably, the VA examiners specified that the Veteran does not have intervertebral disc syndrome. However, although the Veteran rests following flare-ups, the evidence shows that throughout the entire period of appeal, the Veteran was never prescribed bed rest by a physician as due to intervertebral disc syndrome. Therefore, he has not been shown to have incapacitating episodes requiring bed rest prescribed by a physician and treatment by a physician of a total duration of at least four weeks. The Veteran abandoned his appeal regarding the ratings of the radiculopathy of the right and left lower extremities. There are no other neurological disabilities which have been attributed to the Veteran's lumbar spine disability by a medical professional. The competent evidence does not show any other objective neurologic abnormalities associated with the low back disability so as to warrant any separate rating. Therefore, the records do not support a claim for an increased rating higher than 20 percent prior to October 15, 2015. The Board finds that the does not support the assignment of a rating higher than 20 percent. The Board finds that the preponderance of the evidence is against the assignment of any higher rating prior to October 15, 2015, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Layton, 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.