Citation Nr: 21066898
Decision Date: 11/02/21	Archive Date: 11/02/21

DOCKET NO. 15-17 305
DATE: November 2, 2021

ORDER

Entitlement to an evaluation of 40 percent, but no higher, prior to June 3, 2021 for muscle pain residual to a back injury (spine disability) is granted.

Entitlement to an evaluation in excess of 40 percent from June 3, 2021 for a spine disability is denied.

REMANDED

Entitlement to an evaluation in excess of 10 percent for pseudofolliculitis (PFB) is remanded.

FINDINGS OF FACT

1. After resolving reasonable doubt in his favor, the Veteran's spine disability manifested in functional loss equivalent to forward flexion of 30 degrees or less prior to June 3, 2021.

2. The Veteran has not had functional loss equivalent to unfavorable ankylosis of his thoracolumbar spine.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an evaluation of 40 percent, but no higher, prior to June 3, 2021 for a spine disability have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (Code) 5237 (2021).

2. The criteria for entitlement to an evaluation in excess of 40 percent from June 3, 2021 for a spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Code 5237 (2021).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 1990 to May 1991.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2013 and June 2013 rating decisions by the Department of Veterans Affairs (VA). This case was remanded in August 2018 and November 2020 for further development.

In March 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record.

Since the last Board remand, the Agency of Original Jurisdiction (AOJ) granted an increased rating of 40 percent, effective June 3, 2021, for the Veteran's spine disability. See April 2021 rating decision. The issue has been recharacterized accordingly.

Entitlement to a compensable evaluation prior to January 14, 2016, an evaluation in excess of 10 percent from January 14, 2016 to June 2, 2021, and an evaluation in excess of 40 percent from June 3, 2021 for a spine disability.

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4.

When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

In any claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).

The Veteran is currently rated pursuant to Code 5243 and the General Rating Formula for Diseases and Injuries of the Spine (General Formula). Under the General Formula, with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent rating is warranted for 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 rating is warranted 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 kyphosia. A 40 percent rating is warranted for flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. 

"Unfavorable ankylosis" is defined, in pertinent part, as "a condition in which...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." See id., Note (5).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. When evaluating musculoskeletal disabilities based on limitation of motion, there must be consideration of functional loss caused by factors 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. Consideration must also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45; see DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) ("functional loss caused by pain must be rated at the same level as if that functional loss were caused by some other factor...that actually limited motion" (emphasis removed)). Nonetheless, even when the background 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 (musculoskeletal system) or § 4.73 (muscle injury); 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).

The provisions of 38 C.F.R. § 4.59 acknowledge that a claimant's disability may cause actual pain or painful motion but still not be severe enough to warrant a compensable rating under the appropriate Code. Accordingly, when there is evidence of painful motion, § 4.59 operates to provide at least the minimum compensable rating available under the Code for the joint. See Sowers v. McDonald, 27 Vet. App. 472, 478 (2016). However, pain alone does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system. Pain in, like deformity of or insufficient nerve supply to, a particular joint 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 and endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 38-39 (2011).

The Veteran underwent three VA examinations during the course of the appeal. None of the VA examinations are adequate because they do not comply with Correia v. McDonald, 28 Vet. App. 158 (2016). As a result, the Board assigns range of motion measurements provided in the examinations no probative weight. Remand is not required because the Veteran must show unfavorable ankylosis to be entitled to an increased rating in excess of 40 percent. The considerations in Correia do not apply to the symptoms that must be shown for unfavorable ankylosis, such as restricted opening of the mouth and a limited line of vision, and thus remand for a new examination would provide little probative value. The record does not reflect, nor has the Veteran stated, that he has any of the requisite symptoms for a finding of unfavorable ankylosis or the equivalent thereof. Accordingly, the Board finds that remand for a new VA examination is unnecessary.

During a March 2013 VA examination, the Veteran noted that he had occasional back spasms, which would occur about 12 times a year and could last from a few hours to a day. There were no probative lay statements obtained during his January 2016 VA examination. During his March 2018 Board hearing, he reported that his back would "lock up" at any time and start spasming. The pain would be debilitating. He was not able to do anything when his back would spasm. During a June 2021 VA examination, he reported that the pain was constant, even at rest, with intermittent severe spasms. The examiner found that, during a flare-up, forward flexion was limited to 30 degrees.

The appeal period for this matter dates back to August 2009. There is an overwhelming absence of evidence for most of the appeal period. Treatment records reflect back pain, see September 2019 VA treatment records, but there is no indication of how severe or pervasive the pain was. Although his report of back spasms during his March 2013 examination differs from his later reports of debilitating or constant pain, the Board must still resolve reasonable doubt in the Veteran's favor due to the absence of evidence. Thus, the Board finds that the Veteran's back has been in constant pain throughout the appeal period and thus has had a functional equivalent of forward flexion limited to 30 degrees or less. As a result, a 40 percent evaluation is warranted.

To warrant a disability rating in excess of 40 percent, the evidence would need to show unfavorable ankylosis of the thoracolumbar spine or the entire spine. There is no evidence in the record that the Veteran suffers from the symptoms associated with unfavorable ankylosis. Accordingly, an evaluation in excess of 40 percent must be denied.

REASONS FOR REMAND

Entitlement to an evaluation in excess of 10 percent for PFB.

During the course of the appeal, VA revised the criteria for diagnosing and evaluating skin disabilities set forth in 38 C.F.R. § 4.118, effective August 13, 2018. See 83 Fed. Reg. 32,592 (July 13, 2018). Under the older criteria, topical therapy is distinguished from systemic therapy not by the route of administration, but by how much of the body is affected by the treatment. Johnson v. Shulkin, 862 F.3d 1351, 1356 (Fed. Cir. 2017).

It is unclear from the record whether any of the Veteran's treatment for his PFB during the appeal period was systemic under the old rating criteria. Thus, remand for a medical opinion is necessary. 

The matter is REMANDED for the following action:

1. The AOJ should obtain copies of VA treatment records from April 2021 to the present.

2. After the above development is completed, the AOJ should arrange for a VA medical opinion, with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional, to determine the nature of the Veteran's treatment for PFB. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following:

Is any of the treatment for the Veteran's PFB since August 2009 considered systemic therapy? Please explain why. For these purposes, topical therapy is distinguished from systemic therapy not by the route of administration, but by how much of the body is affected by the treatment. The examiner may not define systemic treatment by route of administration.

3. If upon completion of the above action the issue remains denied, the case should be returned to the Board after compliance with appellate procedures. 

 

E. I. VELEZ

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Sandler, 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.