Citation Nr: 21066569 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 16-42 992 DATE: November 1, 2021 ORDER Entitlement to an increased evaluation for chipped bone of the left ankle, higher than 10 percent prior to November 28, 2018, is denied. Entitlement to a 20 percent evaluation for lumbar spine stenosis, prior to March 12, 2018, is granted. FINDINGS OF FACT 1. Prior to November 28, 2018, the Veteran's left ankle disability was manifested by moderate limitation of motion. 2. Prior to March 12, 2018, the Veteran's lumbar spine stenosis was manifested by abnormal gait, but not forward flexion of the thoracolumbar spine limited to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. Prior to November 28, 2018, the criteria for entitlement to a rating higher than 10 percent for chipped bone of the left ankle have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. 2. Prior to March 12, 2018, the criteria for entitlement to an evaluation of 20 percent, but no higher, for lumbar spine stenosis have been met. 38 U.S.C. § 1155, 5107(b); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.7, 4.10, 4.14, 4.21, 4.40, 4.41, 4.45, 4.59, Diagnostic Code 5238. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from August 1964 to July 1967 and from June 1968 to July 1985. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, a Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. In a November 2019 decision, the Board denied, amongst other issues, the Veteran's claims for entitlement to a compensable evaluation for impairment of sphincter control associated with hemorrhoidectomy, prior to March 12, 2018, and higher than 30 percent thereafter, entitlement to an increased evaluation for chipped bone of the left ankle, higher than 10 percent prior to November 28, 2018, and entitlement to an increased evaluation for lumbar spine stenosis, higher than 10 percent prior to March 12, 2018. In July 2020, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's denial and remanded the issues of entitlement to an increased evaluation for impairment of sphincter control associated with hemorrhoidectomy, higher than 10 percent prior to March 12, 2018, entitlement to an increased evaluation for chipped bone of the left ankle, higher than 10 percent prior to November 28, 2018, and entitlement to an increased evaluation for lumbar spine stenosis, higher than 10 percent prior to March 12, 2018, to the Board pursuant to a joint motion for partial remand (JMPR). In November 2019, the Board remanded the issues of entitlement to service connection for OSA, a cervical spine disability, and keratosis, which have been decided and are no longer before the Board. In March 2021, the Board decided the issue of entitlement to an increased evaluation for impairment of sphincter control, hence this issue is no longer before the Board. Increased Rating 1. Entitlement to an increased evaluation for chipped bone of the left ankle, higher than 10 percent prior to November 28, 2018. The Veteran's left ankle is evaluated as 10 percent disabling prior to November 28, 2018, under Diagnostic Code 5271. Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limited motion of the ankle. A maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Normal range of motion for the ankles is 0 to 20 degrees dorsiflexion and 0 to 45 degrees plantar flexion. 38 C.F.R. § 4.71, Plate II. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of 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. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). The Board notes that there are new amendments to the rating schedule for the musculoskeletal system and muscle injuries effective February 7, 2021. These changes include Diagnostic Code 5271, which under the new amendments clarifies that marked limited motion is dorsiflexion less than five degrees or plantar flexion less than 10 degrees and moderate limited motion is dorsiflexion less than 15 degrees or plantar flexion less than 30 degrees. See Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (38 C.F.R. § 4.71a , Diagnostic Code 5271). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. Id. Prior to February 7, 2021, Diagnostic Code 5271 did not define moderate or marked limitation of motion, but rather, evaluated the evidence in such a manner that its decision would be considered "equitable and just." 38 C.F.R. § 4.6. At the Board hearing the Veteran reported having to wear an ankle brace for support. The Veteran underwent an examination in November 2014. He reported pain. Range of motion testing was normal, with dorsiflexion 0 to 20 degrees, and plantar flexion 0 to 45 degrees. There was no evidence of pain with weight bearing, or of localized tenderness or pain on palpation of the joint. There was no additional loss of function or range of motion following three repetitions. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. He denied flare-ups. There was no instability or ankylosis. Pain, weakness, fatigability, or incoordination could significantly limit functional ability with repeated use of the joint. The estimated loss could not be estimated, but loss of function during flare-ups or when the joint is used repeatedly over a period of time is described as instability of the ankle. The Veteran underwent an examination in March 2018. The Veteran reported recurrent twisting. He was taking anti-inflammatories to treat his ankle. He denied flare-ups of the ankle. Range of motion testing revealed dorsiflexion 0 to 10 degrees, and plantar flexion 0 to 30 degrees, with pain. There was evidence of crepitus. There is no additional loss of function or range of motion after three repetitions. The examination is neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time, or functional loss during a flare-up. The examiner was unable to say without speculation whether pain, weakness, fatigability, or incoordination limit functional ability with repeated use over a period of time or during a flare-up. The rationale was there is no conceptual or empirical basis of making such a determination without directly observing function under these conditions. The Veteran did not have muscle atrophy or ankylosis. Ankle instability or dislocation was not suspected. The examiner indicated there was no objective evidence of pain on passive range of motion testing, or when the joint is used in non-weight bearing. The opposing joint was undamaged with no exam abnormalities. In the JMPR, the Court found the Board did not adequately address whether the March 12, 2018, Ankle DBQ, was adequate and complied with the holdings in Sharp v. Shulkin, 29 Vet. App. 26 (2017) and Jones v. Shinseki, 23 Vet. App. 382,390 (2010). The Court explained that "caselaw and VA guidelines anticipate that examiners will offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans" and that "direct observation of functional impairment during a flare-up is not a prerequisite to offering an opinion." Sharp, 29 Vet. App at 35; see Jones 23 Vet.App. at 390. The March 2018 VA ankle examination shows the examiner found the examination to be neither medically consistent or inconsistent with the Veteran's statements describing functional loss over time, but that she was unable to say without resort to speculation whether pain, weakness, fatigability, or incoordination could significantly limit the Veteran's functional ability with repeated use over time because there was "no conceptual or empirical basis for making such a determination without directly observing function under these conditions." In May 2021, an opinion was rendered. The examiner noted a review of the 2014 and 2018 examinations that note the Veteran to have decreased range of motion upon initial measurement. On examination in 2014 and 2018, the Veteran denied flare-ups and functional impact due to left ankle chipped bone. The Board finds that the evidence of record reflects moderate, rather than marked, limitation of motion. The Veteran's most reduced ROM aligns with the 10 percent rating for moderate limitation of motion. The 2014 examiner noted pain, weakness, fatigability, or incoordination could impact functional ability with repeated use, and he denied flare-ups. Per the May 2021 examiner, there was no change in ROM following repetitive use testing in 2014 or 2018. Additionally, comparing the Veteran's ROM to normal ROM under § 4.71, Plate II, in 2014 his ROM was normal. On examination in March 2018, although his ROM was abnormal, he still retained approximately half of his ankle ROM at his most reduced, even in consideration of functional impairment due to pain. The preponderance of the evidence shows that even considering pain, flare-ups, and other functional factors, the Veteran's left ankle symptoms have not been shown to have been so disabling to actually or effectively result in limitation of motion more closely approximating marked limitation of motion. The 2014 examiner stated pain, weakness, fatigability, or incoordination could significantly limit functional ability with repeated use of the joint, with the impact being instability of the ankle. Even though the March 2018 examiner was unable to say without speculation whether pain, weakness, fatigability, or incoordination limit functional ability with repeated use over a period of time or during a flare-up, the examiner did say there was no conceptual or empirical basis of making such a determination without directly observing function under these conditions. A May 2021 addendum opinion noted on review of the 2014 and 2018 examinations, the Veteran did have decreased range of motion, and he denied flare-ups and functional impact. Therefore, as the examiner referenced again the lack of flare-ups identified on examination during the 2014 and 2018 examinations, and the lack of indication of a flare-up, the Board finds the examination findings of the March 2018 DBQ are adequate and comply with the holdings in Sharp v. Shulkin, 29 Vet. App. 26 (2017) and Jones v. Shinseki, 23 Vet. App. 382,390 (2010). Further, the Veteran has no indication of pain on passive motion, or when the joint is used in non-weight bearing, and the opposing joint was undamaged with no exam abnormalities. The Board has considered the other diagnostic codes pertaining to the ankle, however, the Veteran has not been found to have ankylosis of the subastragalar or tarsal joint (5272), malunion of os calcis or astragalus (5273), or astragalectomy (5274), and the Veteran does not contend otherwise. 38 C.F.R. § 4.71a, Diagnostic Codes 5272-5274. Additionally, the Veteran has not been diagnosed with ankylosis of the ankle. Ankylosis is the immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health 68 (4th ed. 1987)). Overall, the Veteran's ankle disability has resulted in limitation of ankle motion that is no more than 10 percent disabling under Diagnostic Code 5271 during the entire claim period. Accordingly, an initial rating higher than 10 percent for left ankle disability is not warranted at any time prior to November 28, 2018. 2. Entitlement to an increased evaluation for lumbar spine stenosis, higher than 10 percent prior to March 12, 2018. The Veteran is seeking entitlement to an increased evaluation for his lumbar spine disability. The Veteran's lumbar spine disability is evaluated as 10 percent disabling prior to March 12, 2018, under Diagnostic code 5238. Lumbar spine disabilities are rated based on limitation of motion, with evaluations assigned under the General Rating Formula for Diseases and Injuries of the Spine. A note following the schedule criteria indicates that, 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. 38 C.F.R. § 4.71a, Plate V, General Rating Formula for Diseases and Injuries of the Spine, Note 2. Diagnostic Codes 5235-5243. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or, 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; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted for disability of the thoracolumbar spine when there is 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. An evaluation higher of 40 percent is not warranted unless there is forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. An evaluation of 50 or greater requires unfavorable ankylosis of the entire thoracolumbar spine. Note 1 to this rating schedule states that any associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are to be evaluated separately under appropriate diagnostic codes. In the alternative, an evaluation can be assigned under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Intervertebral disc syndrome is to be evaluated either under the new 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 when all disabilities are combined under 38 C.F.R. § 4.25. For intervertebral disc syndrome manifested by incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent evaluation 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 40 percent evaluation 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 20 percent evaluation is warranted; and with incapacitating episodes having a total duration of at least one weeks but less than two weeks during the past 12 months, a 10 percent evaluation is warranted. Note 1 of that code provides that, for purposes of evaluations under Diagnostic Code 5243, 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. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flareups. 38 C.F.R. § 4.14. CAVC has held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." See Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain may result in functional loss, but only if it limits the ability to "perform the normal working movements of the body with normal excursion, strength, speed, coordination[, or] endurance." Id. (quoting 38 C.F.R. § 4.40). Additionally, CAVC, in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight bearing and, if indicated, with range of motion measurements of the opposite undamaged joint. The Veteran is in receipt of a 10 percent rating prior to March 12, 2018. Turning to the facts of the case, the Veteran underwent a VA examination in November 2014, and was diagnosed with a lumbosacral strain. He presented with moderate sharp pain of the low back. He denied any current or past treatment. He denied flare-ups. Range of motion testing revealed flexion to 90 degrees or greater, extension was to 30 degrees or greater, right and left lateral flexion was to 30 degrees or greater, and right and left lateral rotation to 30 degrees or greater, with no evidence of pain. Following three repetitions there was no additional limitation in range of motion of the spine. He did not have muscle spasms, guarding, localized tenderness, or pain to palpation of the joints. There was no radiculopathy. There was no ankylosis, or any other neurologic abnormalities. He did not have IVDS. There was no impact on his ability to work. Pain, weakness, fatigability, or incoordination could significantly limit functional ability during repeated use of the joint. Any limitation of range of motion could not be estimated, but loss of function during flare-ups when the joint is used repeatedly over a period of time was described as intermittent, moderate sharp pain of the low back. The Veteran underwent an examination in March 2018. He reported radiating pain in his left leg with cramps and numbness. He denied flare-ups of the spine. Functional impairment was described as unable to walk, sit, or stand. Range of motion testing revealed flexion to 15 degrees, extension to 0, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 35 degrees, with pain. Range of motion itself did not contribute to a functional loss. There was no objective evidence of localized tenderness or pain on palpation of the joint. There was evidence of pain with weight bearing. He was not able to perform three repetitions due to fear of pain. The examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time, or functional loss during a flare-up. The examiner was unable to say without speculation whether pain, weakness, fatigability, or incoordination limit functional ability with repeated use over a period of time or during a flare-up. The rationale was that there is no conceptual or empirical basis of making such a determination without directly observing function under these conditions. He had guarding and muscle spasms that resulted in abnormal gait or abnormal spine contour. He had mild to moderate radiculopathy of the bilateral extremities. There was no ankylosis of the spine. There were no other neurologic abnormalities or findings related to his back. In the JMPR, the Court found the Board did not adequately address whether the March 12, 2018, VA Back DBQ was adequate and complied with the holdings in Sharp v. Shulkin, 29 Vet. App. 26 (2017) and Jones v. Shinseki, 23 Vet. App. 382,390 (2010). The Court explained that "caselaw and VA guidelines anticipate that examiners will offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans" and that "direct observation of functional impairment during a flare-up is not a prerequisite to offering an opinion." Sharp, 29 Vet. App at 35; see Jones 23 Vet.App. at 390. Specifically, the March 2018 back examination shows the examiner found the examination to be neither medically consistent or inconsistent with the Veteran's statements describing functional loss over time, but that she was unable to say without resort to speculation whether pain, weakness, fatigability, or incoordination could significantly limit the Veteran's functional ability with repeated use over time because there was "no conceptual or empirical basis for making such a determination without directly observing function under these conditions." In May 2021, an opinion was rendered, and the examiner noted the Veteran was documented having decreased range of motion upon initial measurement, which contributed toward functional limitation involving bending, kneeling, squatting, lifting, carrying, prolonged walking, standing, and sitting. The prior examination of 2014 and 2018 were silent for back flare-ups. His muscle spasms and guarding attribute to abnormal gait. The Board notes, the period for review and subject to the JMPR is that of prior to March 12, 2018, therefore does not include review of the March 12, 2018 examination. In this case, prior to March 12, 2018, the lowest flexion on examination was to 90 degrees, with no indication of painful motion. However, the May 2021 examining provider stated that prior to March 2018 the Veteran had guarding and spasms that resulted in abnormal gait. Based on the finding that the Veteran has muscle spasms and guarding severe enough to result in an abnormal gait the Board finds that a 20 percent evaluation is warranted for the period prior to March 12, 2018, for the Veteran's thoracic spine disability. As noted above, a 20 percent rating is warranted under DC 5238 for disability of the thoracolumbar spine when there are muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour. The Board notes that, in Sharp, the Court held that VA examiners must provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination. However, prior to March 12, 2018, there are limited or no reports of back flare-ups. The November 2014 examination further did not measure ROM limitation on weight bearing and non-weight bearing. See Correia v. Shinseki, 28 Vet. App. 158, 168-170 (2016); 38 C. F. R § 4.59. Prior to March 12, 2018, the record shows that the Veteran's flexion on exam was found to be, at worst, to 90 degrees. There was no evidence of further limitation following repetitive motion, and flare-ups were denied. Pain, weakness, fatigability, or incoordination could significantly limit functional ability during repeated use of the joint. Any limitation of range of motion could not be estimated, but loss of function during flare-ups when the joint is used repeatedly over a period of time was described as intermittent, moderate sharp pain of the low back. There was no impact on his ability to work. There is no indication of ankylosis of the spine. To meet the criteria for a 40 percent rating, flexion would have to be limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine under diagnostic code 5238. Under Diagnostic Code 5243, there would have to be IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. Therefore, even considering loss due to pain after repetitive use and during a flare-up as described by the Veteran, he is not entitled to an evaluation higher than 20 percent under the General Rating Formula for Diseases and Injuries of the Spine. His symptoms prior to March 12, 2018, did not more nearly approximate flexion limited to 30 degrees or less, nor was there ankylosiseven considering his lay reports of symptoms and functional impact. Higher evaluations are also available for intervertebral disc syndrome. The Veteran has not been diagnosed with IVDS, and there is no probative evidence of record of the Veteran seeking treatment for incapacitating episodes, or that he has been prescribed bed rest by a physician. Therefore, based on the probative evidence of record, the Veteran is not entitled to an evaluation higher than 20 percent prior to March 12, 2018. Note (1) of 38 C.F.R. § 4.71a also instructs the rater to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. The Veteran is service connected for left lower extremity radiculopathy, effective the November 22, 2015the date treatment records first show a diagnosis of radiculopathy in the left lower extremity. A review of all pertinent evidence does not show a finding of left lower extremity radiculopathy prior to that date, nor have his symptoms been shown to be more than mild in nature. Further, the Veteran has not indicated disagreement with the rating assigned for his left lower extremity radiculopathy. There is no evidence the Veteran has suffered from bowel or bladder impairment with relation to his back. As such, a separate evaluation for neurological impairment, aside from the left lower extremity radiculopathy, is not warranted. The Board finds the Veteran is competent to report on symptoms. This competent and credible lay evidence; however, is outweighed by competent and credible medical evidence that evaluates the actual nature of his disability based on objective data coupled with the lay complaints. The Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the examination findings regarding the type and degree of impairment. Accordingly, entitlement to an evaluation of 20 percent and no more, is warranted prior to March 12, 2018. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Skiouris, 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.