Citation Nr: 21066846 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 18-55 582 DATE: November 2, 2021 ORDER Entitlement to an initial evaluation in excess of 10 percent for degenerative arthritis and spondylolisthesis, lumbar spine prior to May 24, 2018 is denied. FINDING OF FACT Prior to May 24, 2018, the Veteran's forward flexion of the thoracolumbar spine exceeded 60 degrees; his combined range of motion of the thoracolumbar spine exceeded 120 degrees; and he did not have muscle spasm, guarding, or ankylosis (favorable or unfavorable) of the spine. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent for degenerative arthritis and spondylolisthesis, lumbar spine prior to May 24, 2018 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Marine Corps from July 2007 to August 2015 and from October 2015 to March 2016. This matter stems from a July 2015 rating decision in which the Agency of Original Jurisdiction (AOJ) granted a 10 percent evaluation for the Veteran's service-connected degenerative arthritis and spondylolisthesis, lumbar spine. The AOJ assigned an effective date of August 16, 2015. The Veteran appealed in March 2016, seeking an evaluation of 30 percent for the initial rating of his service-connected degenerative arthritis and spondylolisthesis, lumbar spine. In October 2018, the AOJ increased the rating from 10 percent to 40 percent, effective May 24, 2018. In February 2020, the Board of Veterans' Appeals (Board) denied entitlement to an increased rating in excess of 10 percent for service-connected degenerative arthritis and spondylolisthesis, lumbar spine prior to May 24, 2018. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2020 Order, the Court entered a Joint Motion for Partial Remand (JMPR) of the parties, vacating the portion of the Board's decision that denied entitlement to an increased rating in excess of 10 percent for service-connected degenerative arthritis and spondylolisthesis, lumbar spine and remanding the matter to the Board for readjudication. The JMPR entered by the Court noted that the Board erred in relying on a February 2016 VA examination that failed to comply with the requirements of Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011) and Correia v. McDonald, 28 Vet. App. 158, 170 (2016). In May 2021, the Board remanded the Veteran's appeal, instructing the AOJ to obtain a retrospective opinion that provides estimates of specific measurements for the Veteran's range of motion testing on both active and passive motion and in weight-bearing and non-weight-bearing, as well as any additional motion loss expected during flares from February 2016. Entitlement to an initial evaluation in excess of 10 percent for degenerative arthritis and spondylolisthesis, lumbar spine prior to May 24, 2018 Disability ratings are determined by comparing a veteran's present symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). However, as this matter pertains to a period prior to February 7, 2021 (prior to May 24, 2018), the Board will only consider the Veteran's claim under the old criteria. The Veteran's back disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Spine disabilities are evaluated under either 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 results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. The General Rating Formula for Diseases and Injuries of the Spine provides for the following ratings, in pertinent part: 20 percent: 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. 40 percent: Forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 50 percent: Unfavorable ankylosis of the entire thoracolumbar spine. 100 percent: Unfavorable ankylosis of the entire spine. "Ankylosis" is immobility and consolidation of a joint due to a disease, injury, or surgical procedure. Lewis v. Derwinski, Vet. App. 259 (1992). Unfavorable ankylosis is a condition in which the entire thoracolumbar spine or the entire spine is fixed in flexion or extension and 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. The criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis. Chavis v. McDonough, 34 Vet. App. 1 (2021). The Formula for Rating IVDS Based on Incapacitating Episodes rates lumbar spine disabilities as follows, in pertinent part: 20 percent: Incapacitating episodes having a total duration of at least two weeks but fewer than four weeks during the past 12 months. 40 percent: Incapacitating episodes having a total duration of at least four weeks but fewer than six weeks during the past 12 months. 60 percent: Incapacitating episodes having a total duration of at least six weeks during the past 12 months. Turning to the facts in this case, the Veteran filed his underlying claim in July 2015. The Veteran underwent a VA examination in February 2016, at which time he reported pain and loss of range of motion. The Veteran described flare-ups that occurred without known precipitating factors and caused his torso to shift and pull to the left, preventing him from being able to stand straight. He explained that the pain increased to the point that he could not stand up without extreme pain and that he had lost most of his range of motion. Upon examination, the Veteran had forward flexion to 80 degrees with pain, extension to 20 degrees with pain, bilateral lateral flexion to 20 degrees with pain, and bilateral lateral rotation to 20 degrees with pain. The examiner noted there was evidence of pain with weight bearing. The Veteran was able to perform repetitive-use testing with at least three repetitions without additional loss of function or range of motion. The examiner found that pain, weakness, fatigability, or incoordination significantly limited the Veteran's functional ability with repeated use over a period of time, as well as with flare-ups; however, he did not list the cause(s) of the functional loss and reported the same range of motion as the initial range of motion measurements. The Veteran did not have tenderness, pain to palpitation, guarding, or muscle spasm. The examiner found that that the Veteran did not have ankylosis of the spine or IVDS of the thoracolumbar spine. The February 2016 VA examiner did not provide any statement as to range of motion lost due to pain, or note where the pain began in the arc of motion, or record the results of range of motion testing for pain on both active and passive motion in weight-bearing and non-weight-bearing. These oversights served as the impetus for the November 2020 JMPR. A retrospective opinion was obtained in August 2021. The August 2021 VA examiner was asked to provide estimates of specific measurements for the historical severity of the Veteran's range of motion testing on both active and passive motion and in weight-bearing and non-weight-bearing, as well as any additional motion loss expected during flare-ups based on the evidence of record around February 2016, specifically the February 2016 VA examination. The August 2021 VA examiner noted that she had reviewed the conflicting medical evidence in the February 2016 VA examination, but found that there was insufficient medical information to make an estimate as to the Veteran's range of motion. However, based on a review of the May 2018 and October 2019 VA back conditions examinations, she opined that the Veteran's passive range of motion is no different from his active range of motion. In addition to the results of the February 2016 VA examination and the August 2021 retrospective opinion, the Board has reviewed the Veteran's medical treatment records for the appellate period prior to May 24, 2018. Those records show a symptom picture that is broadly consistent with the observations of the VA examiners. Clinicians have consistently noted the Veteran's complaints of chronic low back pain without further commentary that quantifies any loss of function. Turning to an analysis of these facts, the Veteran's back disability is rated 10 percent disabling for the period prior to May 24, 2018. A rating in excess of 10 percent under the General Rating Formula for Diseases and Injuries of the Spine requires ankylosis (favorable or unfavorable) of the spine, forward flexion limited to 60 degrees or fewer, or a combined range of motion limited to 120 degrees or fewer, or muscle spasm or guarding resulting in an abnormal gait or abnormal spinal contour. The Veteran's back was not functionally limited to 60 degrees of forward flexion or fewer at any time before May 24, 2018. The Veteran showed forward flexion to 80 degrees at the time of the February 2016 VA examination. Similarly, the Veteran's spine was not functionally limited to a combined range of motion of 120 degrees or fewer at any time before May 24, 2018. The Veteran showed a combined range of motion of approximately 180 degrees, even when taking pain into consideration, at the time of his February 2016 VA examination. Before May 24, 2018, the Veteran did not show muscle or guarding at all, nor did he have an abnormal spinal contour or ankylosis (favorable or unfavorable) of the spine. The criteria for a rating in excess of 10 percent is therefore unavailable at any time before May 24, 2018. With greater ratings unavailable based on the General Rating Formula for Diseases and Injuries of the Spine, the Board will next consider whether greater ratings are warranted under the Formula for Rating IVDS Based on Incapacitating Episodes. As the evidence of record does not show that the Veteran had IVDS at any time during the period prior to May 24, 2018, the criteria for greater ratings based on IVDS have not been met. In making these determinations, the Board has considered the Veteran's functional loss due to factors such as pain, weakened movement, excess fatigability, and incoordination that cause additional disability beyond that which is reflected on range of motion measurements. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 2020 (1995). The Board accepts the Veteran's competent and credible assertions that his service-connected back disability causes him to experience pain, and the Veteran's existing ratings have been assigned based in part on those assertions. The rating schedule does not require a separate rating for pain itself. Spurgeon v. Brown, 10 Vet. App. 194 (1997). The Court has also established that flare-ups must be considered. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Guidance on how to evaluate flare-ups has not been particularly clear. However, the Board finds overall wisdom in Mitchell. Flare-ups must be quantifiable and must result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flare-up must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. With that in mind, consideration has been given to the Veteran's report at his 2016 examination of experiencing flare-ups causing his torso to shift and pull to the left, preventing him from being able to stand straight. Such would not warrant a higher evaluation. The reported flare-ups are not shown to additionally limit function in a quantifiable way, to include resulting in the functional equivalent of ankylosis, and are not of such length or duration that a staged rating would not violate the rule regarding stabilization of ratings. The contemporaneous treatment records contain little, if any, findings pertaining to flare-ups much less information regarding the Veteran's functional ability during a flare-up or after repeated use over time. Indeed, given the sparse record that existed at the time of February 2016 examiner, the 2021 examiner stated that there was insufficient medical information to provide a retrospective estimate (additional loss) on the Veteran's range of motion. In sum, 38 C.F.R. § 4.1 provides that the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. Here, the single report of exacerbation or flare-ups in 2016 is not quantifiable, not credible and not of sufficient duration to warrant a change in evaluation without violating the spirit of Mitchell, the spirit of 38 C.F.R. § 4.1 and the rule regarding stabilization of ratings. Generally, when evaluating diseases and injuries of the spine, the Board is to separately evaluate any associated neurological abnormalities. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). In this case, the Veteran has not reported any neurological abnormalities associated with his back disability, so the Board will not address separate evaluations for neurological abnormalities. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for degenerative arthritis and spondylolisthesis, lumbar spine for the period prior to May 24, 2018. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fairlie, 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.