Citation Nr: 21067515 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 18-13 056 DATE: November 4, 2021 ORDER A rating in excess of 40 percent for lumbar strain (hereinafter, "lumbar spine disability") from March 21, 2019 is denied. FINDING OF FACT From March 21, 2019, the Veteran's service-connected lumbar spine disability has not been manifested by unfavorable ankylosis or the functional equivalent thereof, incapacitating episodes as defined by VA regulation, or neurologic impairment other than the already separately evaluated left lower extremity radiculopathy. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for service-connected lumbar spine disability from March 21, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Coast Guard from August 1978 to August 2001. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The RO, in pertinent part, granted service connection and a 10 percent rating for lumbar strain, effective April 8, 2014. The Veteran appealed, seeking a higher rating. In July 2019, while the Veteran's appeal was pending, the RO increased the rating for the lumbar spine to 20 percent, effective March 21, 2019. The 10 percent rating in effect prior to March 21, 2019 was confirmed and continued. In November 2019, the Board denied a rating in excess of 10 percent for the Veteran's service-connected lumbar spine disability prior to March 21, 2019, and a rating in excess of 20 percent thereafter. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In September 2020, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating the Board's decision insofar as it denied a rating in excess of 20 percent from March 21, 2019 and remanding that matter for additional development and readjudication. The matter of her entitlement to a rating in excess of 10 percent prior to March 21, 2019 was dismissed as abandoned. In April 2021, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development, to include a new medical examination. In August 2021, after taking further action, the AOJ increased the rating for the Veteran's lumbar spine disability to 40 percent, effective March 21, 2019. There has been at least substantial compliance with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a rating in excess of 40 percent for service-connected lumbar spine disability from March 21, 2019 Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. The law mandates resolving any reasonable doubt regarding the degree of disability in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which of two evaluations shall be applied, the higher evaluation 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. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Veteran's lumbar spine disability has been evaluated pursuant to the General Rating Formula for Diseases and Injuries of the Spine, which provides that 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 warranted for forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or, if the combined range of motion of the thoracolumbar spine is greater than 120 degrees, but not greater than 235 degrees; or, if there is muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or, if there has been a vertebral body fracture with loss of 50 percent or more of the height. An evaluation of 20 percent is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or if the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is 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 of 40 percent is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less; or for favorable ankylosis of the entire thoracolumbar spine. An evaluation of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine, and an evaluation of 100 percent requires unfavorable ankylosis of the entire spine. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero 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 lateral rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees, and the normal ranges of motion for each component of spinal motion are the maximum that can be used for calculation of the combined range of motion. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2). 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 (zero degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). The Veteran's lumbar spine disability has been manifested by pain and resulting functional impairment, to include limitation of motion. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated by the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). The Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The evaluation criteria are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine. Therefore, an evaluation based on pain alone would not be appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurologic sections of the rating schedule. In the JMPR filed with the Court, the parties to the JMPR agreed that the Board erred in finding that a March 2019 VA examination was adequate for resolution of the Veteran's case. Accordingly, the Board remanded this case for a new examination, which was accomplished in July 2021. With respect to the Veteran's claim for a rating in excess of 40 percent for the period from March 21, 2019, the Board notes that the July 2021 VA examination explicitly found that she did not have ankylosis of the spine. Nothing in the other evidence of record demonstrates a diagnosis of such. The record also does not reflect functional impairment that is the equivalent of favorable and/or unfavorable ankylosis under the General Rating Formula for Diseases and Injuries of the Spine, to include during flare-ups. See Chavis v. McDonough, No. 18-2928 (U.S. Vet. App. April 16, 2021). As a general matter, the Board notes that ankylosis is the immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). Here, the Veteran reported at the July 2021 VA examination that her back pain had worsened. She also reported having had five flare-ups in the last couple of months which could last up to a day and a half, the severity of which was moderate. On range of motion testing, she had initial forward flexion to 35 degrees, extension to 25 degrees, right lateral flexion to 25 degrees, left lateral flexion to 30 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 20 degrees. Pain was noted to begin at the endpoint at all ranges of motion, and in active motion, weight bearing, and non-weight bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). Passive motion testing was not performed as it might cause her severe pain. Id. It was also noted that pain would limit lifting and bending. Moreover, the examiner estimated that with repeated use over time and during flare-ups, forward flexion would be limited to 25 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 20 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 10 degrees. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The aforementioned range of motion results do not demonstrate the functional equivalent of ankylosis as defined by pertinent VA regulations so as to warrant a rating in excess of 40 percent under General Rating Formula for Diseases and Injuries of the Spine. The Veteran has not identified any inaccuracies with respect to the findings of the July 2021 examination. Nor has she reported that her service-connected lumbar spine disability has increased in severity since the time of that examination. No such impairment is demonstrated by the other evidence of record at any time during the period from March 21, 2019. Moreover, the Veteran has not contended that she would have such impairment but for the use of medication. See Jones v. Shinseki, 26 Vet. App. 56 (2012). The Board has also considered the applicability of the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. However, the Veteran has not been service connected for intervertebral disc syndrome, and the July 2021 VA examiner explicitly found that the Veteran did not have the condition. Moreover, for purposes of the Formula, an incapacitating episode is defined as 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). Here, a thorough review of the record does not reflect that the Veteran's lumbar spine has been manifested by incapacitating episodes as defined by VA regulation. In other words, while the Board does not doubt the Veteran's account that she has experienced flare-ups of pain, the record does not reflect she has had bed rest prescribed by a physician. As an additional matter, the Board observes that Note (1) of the General Rating Formula for Diseases and Injuries of the Spine provides that any associated objective neurologic impairments should be rated separately under the appropriate Diagnostic Code. See 38 C.F.R. § 4.71a. Here, the record, including the July 2021 VA examination report, does not reflect that she has any associated neurologic impairment other than the already separately evaluated radiculopathy of the left lower extremity. No additional, separate ratings are warranted. In light of the foregoing, the Board must find that the preponderance of the evidence is against the assignment of a rating in excess of 40 percent for the Veteran's lumbar spine disability for the period from March 21, 2019, to include on the basis of additional "staged" ratings. In arriving at this conclusion, the Board is cognizant of the fact that revisions were made to some of the rating criteria used to evaluate disabilities of the musculoskeletal system and muscle injuries, effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). However, the revisions made no substantive changes to the rating criteria contained in General Rating Formula for Diseases and Injuries of the Spine and have no impact on the outcome of the Veteran's appeal. Granted, the Formula for Rating Intervertebral Disc Syndrome Based Upon Incapacitating Episodes was revised to clarify that it only applies to intervertebral disc syndrome and not degenerative disc disease. Nevertheless, as noted, the fact remains that incapacitating episodes as defined by VA regulation have not been demonstrated. No change was made to that definition by the revised criteria. The Veteran has suggested, to include in September 2021 written brief submitted by her accredited representative, that her service-connected lumbar spine disability warrants consideration of an extraschedular rating pursuant to 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the Veteran has emphasized that her disability is manifested by pain and resulting functional impairment. As illustrated above, such symptomatology is taken into account when assigning schedular ratings in accordance with 38 C.F.R. §§ 4.40, 4.45, and 4.59. She has not identified any other symptomatology associated with her service-connected disability that is not contemplated by the schedular criteria. Therefore, referral for consideration of an extraschedular rating is not warranted. The appeal is denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board John Kitlas, 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.