Citation Nr: 21068415 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 13-34 885 DATE: November 10, 2021 ORDER Entitlement to a 20 percent rating, but not more, prior to April 20, 2018, for degenerative disc disease with protrusion from L2-L5 and spondylosis is granted. Entitlement to a separate 10 percent rating for left lower extremity neurological abnormality prior to April 20, 2018, is granted. Entitlement to a rating in excess of 40 percent on and after April 20, 2018, for degenerative disc disease with protrusion from L2-L5 and spondylosis is denied. INTRODUCTION The Veteran served on active duty from May 1988 to June 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In November 2017, the Veteran testified at a hearing with the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. The Board remanded this appeal in November 2019 and December 2020. After the issuance of a July 2021 supplemental statement of the case, the appeal has been remitted to the Board for further appellate review. FINDINGS OF FACT 1. Prior to April 20, 2018, the Veteran's service-connected back disability was manifested by a combined range of motion less than 120 degrees. 2. Prior to April 20, 2018, the Veteran's service-connected back disability was manifested by left lower extremity neurological abnormality that more nearly approximated mild, incomplete paralysis of the sciatic nerve. 3. On and after April 20, 2018, the Veteran's service-connected back disability was not manifested by unfavorable ankylosis of the thoracolumbar or unfavorable ankylosis of the entire spine. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating for a back disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5243. 2. The criteria for a separate 10 percent rating for left lower extremity neurological abnormality have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5243, Note (1). 3. The criteria for a rating in excess of 40 percent for a back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminarily, as discussed in the December 2020 remand, the precise date of an examination administered by S.F., M.D., was not written or stamped on the report. In a December 2020 letter, the RO notified the Veteran that, if the date of that examination could not be determined, VA would utilize the date the report was associated with the claims file. The RO was unable to ascertain the date of the examination and, ultimately, determined that the resulting report was first associated with the claims file on April 20, 2018. The RO used this date in assigning the 40 percent rating for the Veteran's service-connected back disability at issue herein. It is the earliest possible date that the severity described therein can be factually ascertained. Given that the Veteran was notified of this possible action and was provided an opportunity to submit or identify evidence of the correct date, but did not do so, the Board will not disturb the RO's determination. In the December 2020 remand, the Board also requested that the Veteran be provided with a VA examination to ascertain the severity of his service-connected back disability, to include a determination as to whether he experiences flare-ups. This examination occurred in July 2021, during which the examiner specifically asked about flare-ups. Thereafter, the RO issued a July 2021 rating decision granting a 40 percent rating on and after April 20, 2018, for the Veteran's service-connected back disability. As this is not a full grant of the benefits sought on appeal and the Veteran has not otherwise limited his appeal to the granted benefits, the appeal remains pending before VA. After issuing a July 2021 supplemental statement of the case, the RO remitted the appeal to the Board for further appellate review. The Board finds that the RO substantially complied with remand directives and, thus, a remand for corrective actions is not required. Disabilities of the thoracolumbar spine are rated under a General Rating Formula (Formula). 38 C.F.R. § 4.71a. The Formula ratings apply with or without symptoms such as pain, stiffness, or aching. A 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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 evaluation is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted it there is unfavorable ankylosis of the entire thoracolumbar spine. The Formula provides for a separate rating for any associated objective neurologic impairment. Evaluations for intervertebral disc syndrome are to be performed either under 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 method results in the higher evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, Note 6. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent disability rating is assigned for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. 38 C.F.R. § 4.71a. A 20 percent disability rating is assigned for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Id. A 40 percent disability rating is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Id. A 60 percent disability rating is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. Prior to April 20, 2018 A 10 percent rating has already been assigned to the Veteran's lumbar spine degenerative disc disease prior to April 20, 2018. In October 2010, the Veteran underwent a VA examination to assess the severity of his service-connected back disability. The Veteran complained of constant low back pain, with flare-ups that include stiffness and limitation of motion due to prolonged sitting and during cold weather. The Veteran reported that his pain radiated along the posterior aspect of this thighs, more so on the left. He also rated his pain as 6 to 7 on a 10-point pain scale. He endorsed taking tramadol, utilizing a back brace, and using a TENS unit. The Veteran reported his back pain limited his ability to work, working only on a limited basis, 6 to 8 hours per week, doing handywork, house care, and lawn maintenance. The examiner indicated that the Veteran did not ambulate with a limp, did not use any assistive device for ambulation, and that the Veteran's pain did not interfere with his activities of daily living. Further, the examiner determined that the Veteran did not experience incapacitating episodes or flare ups in the previous 12 months. Upon physical examination, the examiner noted a normal gait, no spinal deformity, and no muscle spasm. There was slight tenderness over the left paravertebral muscle at L5-S1 and over the left buttock. Range of motion testing showed forward flexion from zero to 70 degrees with pain at 60 degrees; extension from zero degrees to 20 degrees, with pain at 15 degrees; left and right lateral flexion and rotation is from zero degrees to 20 degrees, with pain at 10 degrees. Repeat range of motion did not produce additional limitation of motion due to pain, weakness, fatigue, lack of endurance, or incoordination. The examiner stated that additional range of motion during flare ups could not be determined without resorting to mere speculation. Straight leg raising is negative on the right and positive at 70 degree on the left. Neurological examination in both lower extremities showed no sensory, motor, or reflex abnormalities. In November 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The Veteran stated that he experienced pain that radiated down his left side. If he stopped moving, the Veteran reported experiencing "cramps." Concerning range of motion, the Veteran stated that he "sometimes" experienced problems with bending over and twisting, other times "not so much." When he was sitting and bent forward, he endorsed pain throughout flexion and needed to move side to side in order to avoid "cramps." The Veteran reported needing to lay down and avoiding work, but his testimony is unclear as to whether a medical professional ever prescribed bedrest due to back symptoms. Treatment included epidural injections at a VA pain clinic. Based on the results of the October 2010 VA examination, the Board finds that a 20 percent rating, but not more, is warranted prior to April 20, 2018. With consideration of the Veteran's reported pain during range of motion testing, his combined range of motion of the thoracolumbar spine is less than 120 degrees. Specifically, pain started at 60 degrees during flexion, at 15 degrees during extension, and 10 degrees at each left and right lateral flexion and rotation. Thus, the sum of these ranges equal 115 degrees, which is below the 120-degree threshold. Consequently, a 20 percent rating is warranted throughout the period prior to April 20, 2018. Even with consideration of the Veteran's reports of pain, flare-ups, and other lay observable symptoms and functional limitations, the Board finds that the preponderance of the evidence is against finding that his service-connected back disability was manifested by forward flexion of the thoracolumbar spine to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or unfavorable ankylosis of the entire thoracolumbar spine. As such, a rating in excess of 20 percent prior to April 20, 2018 is not warranted. With respect to neurological abnormalities associated with the Veteran's service-connected back disability, he reported pain radiating down both lower extremities, left greater than right, during the October 2010 VA examination. Clinical evaluation revealed a positive straight leg test for the Veteran's left leg, but not his right. Neurological testing was negative for sensory, motor, and reflex abnormalities, bilaterally. The Board finds that the evidence of record is at least in equipoise as to the demonstrable presence of a left lower extremity neurological abnormality associated with the Veteran's service-connected back disability prior to April 20, 2018. The Veteran reported pain radiating into his buttocks, but the clinical evaluation was negative beyond a positive straight leg test. Consequently, the Board finds that the symptoms associated with the Veteran's left lower extremity neurological abnormality more nearly approximates mild incomplete paralysis of the sciatic nerve. Accordingly, the Board finds that a 10 percent rating, but not more, is warranted prior to August 20, 2018 for left lower extremity neurological abnormality. Despite the Veteran's report of pain radiating into his right lower extremity, there were no substantiating clinical findings prior to April 20, 2018. The October 2010 VA examiner determined that there were no sensory, motor, or reflex neurological abnormalities, and straight leg testing was negative. Consequently, the Board finds that the preponderance of the evidence is against finding the presence of a right lower extremity neurological abnormality associated with the Veteran's service-connected back disability prior to April 20, 2018. Additionally, the preponderance of the evidence is against finding that the Veteran's service-connected back disability was otherwise manifested by associated neurological abnormalities prior to April 20, 2018. Accordingly, separate ratings for any such abnormalities are not warranted. Prior to April 20, 2018, the evidence of record does not demonstrate that the Veteran's service-connected back disability was manifested by incapacitating episodes as defined by VA, i.e., doctor-prescribed bedrest. See Chavis v. McDonough, Vet. App., No. 18-2928, 2021 WL 1432578 , at 8 (Apr. 16, 2021) (holding that the General Rating Formula for Diseases and Injuries of the Spine contemplates the functional equivalent of ankylosis). Accordingly, a rating in excess of the already assigned 20 percent is not warranted. On and After April 20, 2018 On and after April 20, 2018, a 40 percent rating has already been assigned to the Veteran's service-connected back disability. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. 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. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Here because the revisions do not impact the adjudication of this issue, the Board will proceed to address this issue. A rating in excess of 40 percent is not warranted at any time on and after April 20, 2018. There is no evidence, to include history, of unfavorable ankylosis of the entire thoracolumbar spine, and there is no evidence of incapacitating episodes as defined by VA, i.e., doctor-prescribed bedrest. See Chavis, Vet. App., No. 18-2928, 2021 WL 1432578, at 8. The Board notes that as 40 percent is the highest schedular rating for limitation of motion of the spine, the regulatory provisions (38 C.F.R. §§ 4. 40, 4.45) pertaining to functional loss are not for application. Sharp v. Shulkin, 29 Vet. App. 26 (2017); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). The Board has considered Correia v. McDonald, 28 Vet. App. 158 (2016), which holds that 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 possible, with range of motion measurements of the opposite undamaged joint. However, given the Veteran is receiving the maximum rating based on limitation of motion of the thoracolumbar spine, and a higher rating requires unfavorable ankylosis of the entire spine, there is no prejudice in any VA examination failing to comply with § 4.59 as interpreted in Correia. The Board has considered whether a separate rating is available but finds none is warranted. Service connection is already in effect for neurological abnormalities of the right and left lower extremities, and there is no evidence of an additional objective neurological deficit associated with the low back disability which could warrant a separate rating. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sean G. Pflugner, 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.