Citation Nr: 21068624 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 09-08 435 DATE: November 10, 2021 ORDER Prior to October 20, 2016, a rating greater than 20 percent for intervertebral disc syndrome (IVDS), lumbar spine ("back disability") is denied. FINDING OF FACT Prior to October 20, 2016, the Veteran's back disability manifested by subjective complaints of chronic back pain and flare-ups; objective findings did not demonstrate forward flexion to less than 30 degrees or less, favorable ankylosis of the entire spine, or IVDS productive of incapacitating episodes, or such disability pictures due to flares. CONCLUSION OF LAW Prior to October 20, 2016, the criteria for a rating greater than 20 percent for IVDS, lumbar spine, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 2003 to April 2007. For his meritorious service, the Veteran was awarded (among other decorations) the Army Achievement Medal. In pertinent part, the Board denied this appeal in April 2017. However, the Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Partial Remand (JMPR) in January 2018, thereby vacating the Board's determination and remanding the matter for further review. The Board subsequently issued a series of remands, most recently in July 2021 for an adequate VA examination, which was obtained in August 2021. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As explained in greater detail, the Board's remand directives having been completed, the Board finds substantial compliance with those directives. Increased Rating The Veteran remains in pursuit of a rating greater than 20 percent for his back disability prior to October 20, 2016. Generally, disability ratings are determined by the applications of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Of note, 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. Given the date of their enactment, these amendments are not applicable to the period on appeal and will not be considered herein. Additionally, the Veteran is separately service-connected for left lumbar sensory radiculopathy under DC 8520 during the period on appeal, such that symptoms attributed to this disability will not be considered in conjunction with this appeal. See 38 C.F.R. § 4.14 (prohibiting pyramiding of symptoms). Rather, the Veteran was rated under DC 5243 during the period on appeal for IVDS. As such, a 40 percent rating is warranted with evidence of the following: Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; or IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Further, normal combined range of motion (referencing the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation) for the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, DC 5243 at Note (2). Upon consideration of the evidence, a rating greater than 20 percent is not warranted for the Veteran's back disability prior to October 20, 2016. The Veteran underwent four relevant VA examinations during the period on appeal; specifically, in June 2007, April 2009, January 2013, and February 2015. On all occasions, ankylosis or a history of incapacitating episodes, as defined by VA regulations, were either unreported or explicitly denied. Thus, the appeal fails on these bases. However, a 40 percent rating is still available with evidence of forward flexion to 30 degrees or less. In June 2007, range of motion testing showed forward flexion from zero to 90 degrees. At that time, the Veteran classified his chronic back pain as a four out of 10, with occasional sharp pains. Flare-ups were also reported twice per month, each lasting for several days and causing pain at an eight out of 10. Weakness and numbness were denied, and the Veteran indicated that his disability did not interfere with the activities of daily living, although he was "uncomfortable." In April 2009, range of motion testing showed forward flexion from zero to 90 degrees. Painful motion, tenderness, spasms, edema, fatigability, lack of endurance, weakness, and instability were all denied. The Veteran was able to perform repetitive motion without additional loss of motion. However, he reported constant and daily pain with flares, causing pain at a seven out of 10. Flare-ups were typically instigated by twisting motion, such as playing golf or softball. The examiner estimated that additional limitation of motion due to flare-ups could not be determined without resorting to mere speculation, and the Veteran did not report any effects or conditions on the activities of daily living due to his disability. In January 2013, forward flexion was to 90 degrees or greater, without objective evidence of painful motion. The Veteran was able to perform repetitive-use testing without additional loss of motion. Functional loss or impairment of the spine, weakness, fatigability, incoordination, and instability were either unreported or denied. However, the Veteran reported ongoing flare-ups approximately five to six times per month, with a pain level at an eight out of 10. Typically, his flares subsided within two days, and were triggered by such actions as prolonged driving, playing golf, engaging in sexual relations, or playing with his children. Flare-ups were relieved with over-the-counter medication and the use of a hot tub, and the examiner denied that additional limitation due to flares could be determined without resorting to mere speculation. In February 2015, forward flexion was from zero to 60 degrees. Pain was noted on flexion, but the range of motion itself did not contribute to functional loss. There was no evidence of pain with weight-bearing. The Veteran was able to perform repetitive-use testing without additional loss of motion. Pain, weakness, fatigability, and incoordination were not found to significantly limit functional ability with repeated use over a period of time. However, the Veteran reported ongoing flare-ups approximately four to five times per year. Each flare lasted approximately one to two days, and were classified by the Veteran as "severe." In assessing the impact of the Veteran's flares, the examiner concluded that she was unable to determine if pain, weakness, fatigability, and incoordination would significantly limit functional ability, as the symptoms are subjective are there is no objective evidence available for review to support such contentions. With these results alone, there is no basis upon which to grant the Veteran's appeal due to limitation of motion. At no time did he show forward flexion of the thoracolumbar spine to 30 degrees or less, whether upon initial or repetitive-use testing. Moreover, his examiners routinely denied that such symptoms as pain, weakness, fatigability, or incoordination were observed on testing or productive of functional impairment or additional loss of motion. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Although the Veteran offered competent testimony as to flare-ups, there is no objective evidence to support that these events resulted in limited motion equivalent to forward flexion to 30 degrees or less. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the January 2018 JMPR contends that the Board's prior denial on this basis does not adequately consider flare-ups and resulting functional loss in accordance with Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In particular, the parties challenged the adequacy of the February 2015 VA examination, during which the examiner reviewed only the Veteran's treatment records and not the entire claims file in assessing the current severity of his disability. Generally, the Board rejects the argument that an examiner's failure to review the claims file in its entirety automatically renders the underlying opinion as inadequate. It is apparent from the February 2015 examination report that the Veteran was afforded an in-personal examination by a medical professional and had ample opportunity to describe the nature and severity of his symptoms and their impact on his functioning. Moreover, the examiner reviewed the Veteran's concurrent VA treatment records at that time, and the Board's contemporaneous review of additional private treatment records and lay statements does not identify any evidence which significantly challenges the VA examiners' findings, including with objective evidence of flexion limited to 30 degrees or less, including during flares. Nonetheless, the Board repeatedly remanded this appeal following the Court's vacatur in an effort to obtain a more substantial opinion as to the impact of the Veteran's flares on his overall functioning during the period on appeal. Although such opinions were obtained in April 2019, August 2020, and April 2021, the Board's July 2021 remand articulates why these evaluations are inadequate upon which to assess the merits of this appeal. Instead, an adequate opinion was obtained in August 2021. At that time, the examiner concluded that after reviewing February 2015 and October 2016 VA examinations, he could "only opine that the Veteran had persistent and progressive loss of [range of motion] in flexion . . . in active motion of the lumbar spine." Qualifying said loss in terms of additional loss of motion was not possible without resorting to mere speculation, "because certain [activities of daily living] (e.g. prolonged standing, walking, bending) can still affect the Veteran's function even if he is not having a flare-up and so the [range of motion] can vary from day to day." It was more likely than not that passive motion, weight-bearing, and nonweight-bearing "also had a persistent and progressive loss" in terms of range of motion; but again, quantifying this loss in terms of degrees would be speculative in nature. Upon review of the file and the above-referenced examinations, the examiner concluded that the Veteran experienced flare-ups approximately four to five times per year, each lasting for one to two days. The symptoms were subjectively described by the Veteran as "severe." Precipitating factors included walking, standing, prolonged sitting, and mowing. Alleviating factors included rest and nonsteroidal anti-inflammatory drug (NSAID) injections. Functional impairment during active flares included limitations with walking or standing, which "may" cause lost time from work. The examiner also noted that at the time of the February 2015 examination, the Veteran could still perform the activities of daily living during flare-ups; his symptoms did not cause limitation with walking, sitting, or standing until the October 2016 evaluation, commensurate with the current increase in disability evaluation. Range of motion was more likely than not to decrease during the flare-up, but quantifying the limitation of motion in terms of degrees was not possible without resorting to mere speculation, because the Veteran engaged in different activities on a day-to-day basis which could cause or worsen his flares, and the reviewed examinations were not conducted during a flare-up. The August 2021 examination is both adequate and probative evidence against the claim. Compellingly, this examination was conducted by an orthopedic specialist with the expertise to assess the Veteran's symptoms and their related impact on his functioning, including during flares. The claims file in its entirety was reviewed in support of the examiner's assessments, and his inability to provide more definitive opinions reflect the limitations of the medical community at large, as a retrospective opinion was not possible given that the Veteran was not previously examined during a flare and his disability was influenced by his varying day-to-day activities. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008); Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). Thus, the Board finds neither subjective nor objective evidence that the Veteran's flare-ups were productive of such limited motion as to equate forward flexion of the thoracolumbar spine 30 degrees or less during the period on appeal. As previously stated, there are no objective testing results (or competent retroactive assessments thereof) upon which to base such a finding. Moreover, the Veteran's own competent and credible testimony refutes such a finding in this case. Layno, 6 Vet. App. at 469. During repeated evaluations, he reported only limited interference with the activities of daily living during his flare-ups, including limitations with prolonged walking, standing, and sitting. Said flares were primarily incited by athletic pursuits as opposed to standard daily movement. Additionally, the Veteran did not require assistance with daily tasks during flares or require assistive devices for ambulation during flares. He also routinely denied that symptoms such as weakness, fatigability, or incoordination were present during flares, let alone that they contributed to additional loss of motion or function. DeLuca, 8 Vet. App. at 206-07. Quite simply, even considering the Veteran's reported flare-ups, the Board cannot find that the Veteran's disability more closely approximated the symptoms required for an increased, 40 percent rating for his service-connected back disability. In denying this appeal, the Board acknowledges the Veteran's prolonged and good faith belief that a higher rating is warranted during the period on appeal, to include due to chronic flare-ups. However, he lacks the medical training and expertise to offer a competent opinion as to the specific level of disability according to the applicable DC. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Instead, greater probative value is offered to the medical evidence in assessing the severity of the Veteran's disability, which supports the denial of this claim. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kovarovic, 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.