Citation Nr: 21068331 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 19-35 566 DATE: November 10, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for lumbosacral strain is denied. Entitlement to an effective date prior to May 9, 2018 for the grant of a 50 percent disability rating for service-connected posttraumatic stress disorder (PTSD), traumatic brain injury (TBI), with persistent depressive disorder and anxious distress is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's lumbar spine disability was shown to result in limitation of forward flexion of the thoracolumbar spine to 85 degrees at worst, but with pain throughout the range of motion. The evidence does not show muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, nor does it demonstrate associated neurological impairment. 2. The evidence of record shows that the Veteran filed a formal increased rating claim for his service-connected PTSD, TBI with persistent depressive disorder and anxious distress on August 26, 2018 and an intent to file such claim was received on May 9, 2018; further, the evidence of record does not indicate that a factually ascertainable increase in disability due to the Veteran's service-connected PTSD, TBI with persistent depressive disorder and anxious distress occurred within 1 year prior to August 26, 2018. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating in excess of 10 percent for lumbosacral strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. 2. The criteria for entitlement to an effective date prior to May 9, 2018 for the grant of a 50 percent disability rating for service-connected PTSD, TBI, with persistent depressive disorder and anxious distress have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from July 2010 to April 2014. These matters come before the Board of Veterans' Appeals (Board) on appeal from November 2018 and January 2019 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where 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 for that rating. 38 C.F.R. § 4.7. Further, 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 in 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 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). Instead, 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 (38 C.F.R. § 4.40), 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 (38 C.F.R. § 4.45). 1. Entitlement to an initial disability rating in excess of 10 percent for lumbosacral strain is denied. The Veteran contends he is entitled to a higher disability rating for his service-connected lumbosacral strain. He is currently assigned a 10 percent rating. The Veteran's lumbosacral strain is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. The Board notes the criteria for evaluating musculoskeletal disabilities was amended effective February 4, 2021; however, the criteria under Diagnostic Code 5237 remain unchanged. See 85 FR 76460, Nov. 30, 2020. 86 FR 8142, Feb. 4, 2021. Under the General Rating Formula for Diseases and Injuries of the Spine, 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 kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 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 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; 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."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Turning to the evidence of record, the Veteran initially underwent a VA examination for his lumbar spine disability in July 2014. The VA examiner notes the Veteran's diagnosis as lumbosacral strain with onset in 2012. The Veteran reported his condition now results in a low level of low back pain, with some sharp pain occasionally that is not associated with any activity. The Veteran reported that his pain is generally a two or three (out of ten) and does not prevent him from doing anything; further, he indicated he is able to run for several miles on the treadmill at one time. Objective findings on his range of motion (ROM) are reported as 85 degrees forward flexion, 30 degrees extension, 30 degrees right lateral flexion, 30 degrees left lateral flexion, 30 degrees right lateral rotation, and 30 degree left lateral rotation. Pain is not noted at each ROM. The Veteran also denied flare-ups. The examiner noted that the Veteran was able to perform repetitive use testing with any functional loss. The VA examiner indicated that the Veteran had no muscle spasms or guarding of the thoracolumbar spine. No radiculopathy or other neurologic abnormalities were found. The Veteran was not diagnosed with Intervertebral Disc Syndrome (IVDS). Lastly, the Veteran exhibited no signs of ankylosis. The Veteran was afforded an additional VA examination in December 2018. The Veteran endorsed pain that he characterized as "sharp" and rated it as a two or three up to a seven or eight out of ten in severity. The Veteran reported he uses over-the-counter Tylenol as needed for the pain, as well as a TENs unit and a brace every other day. The Veteran stated that his activities of daily living are not limited due to his lumbar spine disability but stated that his standing is limited to about five to 10 minutes before needing a break, and that he now experiences more pain in his back when running. Objective findings on his ROM are reported as normal; 90 degrees forward flexion, 30 degrees extension, 30 degrees right lateral flexion, 30 degrees left lateral flexion, 30 degrees right lateral rotation, and 30 degree left lateral rotation. Pain was noted on each ROM, but the VA examiner indicated that the pain does not result in functional loss. The Veteran also denied flare-ups. The examiner noted that the Veteran was able to perform repetitive use testing with any functional loss. The VA examiner indicated that the Veteran had no muscle spasms or guarding of the thoracolumbar spine. No radiculopathy or other neurologic abnormalities were found. The Veteran was not diagnosed with IVDS. Additionally, the Veteran exhibited no signs of ankylosis. The Veteran most recently underwent a VA examination in September 2019. During this examination, the Veteran reported flare-ups of his lumbar spine disability. The Veteran indicated that he experiences difficulty in prolonged sitting, difficulty when sleeping, difficulty when lifting, difficulty when bending, difficulty in walking, difficulty in climbing the stairs, and difficulty when standing due to his lumbar spine condition. However, objective findings on his ROM are reported as all normal; 90 degrees forward flexion, 30 degrees extension, 30 degrees right lateral flexion, 30 degrees left lateral flexion, 30 degrees right lateral rotation, and 30 degree left lateral rotation. Pain was noted on each ROM. The examiner noted that the Veteran was able to perform repetitive use testing without any additional functional loss. The VA examiner indicated that the Veteran had no muscle spasms or guarding of the thoracolumbar spine. No radiculopathy or other neurologic abnormalities were found. The Veteran was not diagnosed with IVDS. Again, the Veteran exhibited no signs of ankylosis. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran's service-connected lumbosacral strain. While he experiences painful motion, that is considered in the currently assigned 10 percent rating. The fact remains that he had at worst flexion to 85 degrees, which is nearly full flexion (90 degrees). Additionally, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait, or abnormal spinal contour such as reversed lordosis, or abnormal kyphosis. The Board acknowledges the Veteran's lay reports of symptoms and that his symptoms have increased to a sharp pain with certain activities or movements, causing difficulties with certain activities. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation would not result in limitation of motion more nearly approximating 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. To the extent that the Veteran has more recently described flare-ups, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court stated that flare-ups must be considered in providing an estimate of additional functional loss based on range of motion. The VA examiners have not given an estimate of additional loss during flare-ups or after repeated use over time, and they stated that no opinion could be provided without mere speculation because they would need to observe the Veteran during periods of increased pain or other factors. However, there is no indication that any flare-ups or repeated use over time results in any additional loss of motion over that outlined below. Furthermore, the guidance on how to evaluate flare-ups has not been particularly clear. As a consequence, it is determined that the holding in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), will be expanded and flare-ups must be quantifiable and must result in limitation of motion of function beyond that contemplated by the already provided evaluation. Additionally, because there is a regulation addressing the stabilization of ratings, flare-ups must be of such length as to establish that the overall impairment is more severe than currently evaluated. The statements made in this case do not show that any flare-ups or repeated use over time have additionally limited function in a quantifiable way, nor do they show that they are of such length or duration that a higher or staged rating would not violate the rule regarding stabilization of ratings. In sum, 38 C.F.R. § 4.1 provides that the degrees of disability specified by the ratings in particular diagnostic codes 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 Veteran's reports of exacerbation or flare-ups for his back are not quantifiable and not of sufficient duration to warrant a change in evaluation without violating the spirit of Mitchell, 38 C.F.R. § 4.1, and the rule regarding stabilization of ratings. Furthermore, the lack of an opinion without speculation to estimate any additional range of motion loss during flare-ups or after repeated use due to not observing the disabilities during increased pain, as noted in Sharp, is not prejudicial. Therefore, no further VA examination or medical opinion is necessary. Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with her spine disability. All VA examiners of record indicated there is an absence of radiculopathy, ankylosis, IVDS, guarding and spasm, and other neurologic abnormalities throughout the appeal period. Consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. However, the Veteran does not have IVDS, and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for lumbosacral strain. 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. Earlier Effective Date 2. Entitlement to an effective date prior to May 9, 2018 for the grant of a 50 percent disability rating for service-connected PTSD, TBI, with persistent depressive disorder and anxious distress is denied. In a November 2018 rating decision, the Veteran was granted an increased 50 percent rating for his service-connected PTSD, TBI, with persistent depressive disorder and anxious distress, effective May 9, 2018, the date the Veteran filed his intent to file a claim for an increased rating. An effective date of May 9, 2018 was assigned based on the date of receipt of the Veteran's Intent to File, followed by a complete formal claim for an increased evaluation for psychiatric condition within one year. 38 C.F.R. § 3.155(b). Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after a final disallowance, or a claim for increase, will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. A "claim" is defined in the VA regulations as "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1 (p). VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The amendments also, inter alia, eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155, 3.157. The amended regulations apply only to claims filed on or after March 24, 2015, such as the case for the claim currently before the Board. Generally, the effective date of an award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase shall be fixed in accordance with the facts found but shall be no earlier than the date of receipt of the application thereof. 38 U.S.C. § 5110 (a). An exception to the general rule applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). Under these circumstances, the effective date of the award is the earliest date at which it was ascertainable that an increase occurred. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997). The question of when an increase in disability is factually ascertainable is based on the evidence in the Veteran's claims folder. Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992). If the increase occurred more than 1 year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110 (b)(2); Harper, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o); VAOPGCPREC 12-98 (1998). In the instant case, the Board finds that the preponderance of the evidence is against granting the Veteran's claim of entitlement to an earlier effective date than May 29, 2018 for the 50 percent rating for his service-connected PTSD. The Board has reviewed the evidence of record dated during the 1-year period prior to the claim received on August 26, 2018 to determine whether any evidence demonstrated that a factually ascertainable increase in disability occurred during this time period. There is nothing in the record dated during this time period to support such a finding. Although there are VA treatment records showing that the Veteran continued to receive treatment for service-connected PTSD during this time period, this evidence does not show that he experienced symptoms that would equate to deficiencies resulting in occupational and social impairment with reduced reliability and productivity, consistent with a 50 percent rating for PTSD under DC 9411. Because there is no evidence relevant to the severity of his PTSD condition within one year prior to his claim for increase, the appropriate effective date is the date of the intent to file on May 9, 2018. There is no reasonable doubt to be resolved in the Veteran's favor, and the appeal is denied. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. M. Lowman, 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.