Citation Nr: 21069365 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 12-34 532 DATE: November 18, 2021 ORDER Entitlement to an initial schedular rating in excess of 10 percent for degenerative disc disease, lateral recess stenosis, neuroforaminal stenosis, spondylopathy, rotary scoliosis, grade I retrolisthesis L4 and L5, degenerative joint disease, dextroscoliosis and wedging compression T6, T12 of the lumbar spine (the "back disability") is denied. FINDING OF FACT The preponderance of the evidence shows that the Veteran's back disability is not manifested by adverse symptomatology that equates to at least flexion being less than 60 degrees and/or the combined range of motion of the thoracolumbar spine being 120 degrees or less nor ankylosis even when considering his complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups; it is not manifested by guarding severe enough to result in an abnormal gait, or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis; and it is not manifested by incapacitating episodes that required bed rest prescribed by a physician and treatment by a physician having a total duration of at least 4 weeks during a 12-month period at any time during the appeal. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for a back disability have not been met at any time during the appeal. 38 U.S.C. §§ 1155, 5100, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 3.655, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.71a, Diagnostic Codes 5235 to 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service with the United States Army from May 1995 to May 1998, July 2001 to October 2004, and October 2006 to February 2010 with service in Iraq and the award of the Combat Infantry Badge. The Veteran also had service with a Reserve Component. In a May 2019 Board of Veterans' Appeal (Board) decision issued by a Veterans' Law Judge not the undersigned it, among other things, denied a rating in excess of 10 percent for a back disability and Remanded the claim for a TDIU. The Veteran appealed the May 2019 denial of his increased rating claim to the United States Court of Appeals for Veterans Claims (Court). In an April 2020 order, the Court granted the parties' Joint Motion for Partial Remand (JMPR) vacating and remanding the Board's May 2019 decision as it related to the claim for an increased rating for the back disability. In September 2020, the Board remanded the claim for an increased rating for the back disability. As to the TDIU claim, the Board notes that this issue has not as yet been returned by the regional office (RO) and therefore no further action needs to be taken as to this issue at this time. Lastly, the Board notes that additional evidence was added to the claims file since the RO issued the March 2021 supplemental statements of the case. Nonetheless, the Board finds that it may adjudicate the appeal without first remanding this evidence for agency of original jurisdiction (AOJ) review because in October 2021 the Veteran's representative waived such review. See 38 C.F.R. § 20.1304(c). The Concerns Raised by the JMPR and Post-Remand Compliance As to the concerns raised in the JMPR and post-Remand compliance, the Board finds that the post-remand development substantially complied with both because it finds that the VA examination obtained in March 2021 provide all needed information to rate his back disability under all applicable rating criteria to include range of motion studies that considered his complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order); Sharp v. Shulkin, 29 Vet. App. 26 (2017); and Correia v. McDonald, 28 Vet. App. 158 (2016). The Board also finds that the post-Remand development substantially complied with the Remands because all identified and available VA and private treatment records were obtained and associated with the claims file. See 38 U.S.C. § 5103A(b); Stegall, supra. Therefore, the Board finds that further delay by remanding the appeal to provide the Veteran with a new VA examination or to obtain additional medical records is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Further development or analysis does not serve the interests of the Veteran or the VA. The Increased Rating Claim The Veteran claims, in substance, that he is entitled to a higher rating for his service-connected back disability at all times during the pendency of the appeal. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to 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. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Furthermore, in Jones Shinseki, 26 Vet. App. 56, 61-63 (2012) the Court held that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's back disability is rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5237. In this regard, the General Rating Formula for Disease and Injuries of the Spine provides that with or without such symptoms as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, provides a 10 percent rating if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees, the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or a vertebral body fracture with loss of 50 percent or more of the height; a 20 percent rating if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, if the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, 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 if forward flexion of the thoracolumbar spine being 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating if there is unfavorable ankylosis of the entire thoracolumbar spine; and 100 percent rating if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5242. Note(1) also articulates that neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. Id. Normal back motion is flexion to 90 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left rotation to 30 degrees. 38 C.F.R. § 4.71a, Plate V. Moreover, the Formula for Rating Intervertebral Disc Syndrome provides a 10 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 1 week during the past 12 months, a 20 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 2 weeks during the past 12 months, a 40 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 4 weeks during the past 12 months, and a 60 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Diagnostic Code 5243 defines an incapacitating episode as one where the Veteran has physician prescribed bed rest. 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 (2016); 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). 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, 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. Therefore, 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. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the United States Court of Appeals for Veterans Claims (Court) in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court held that 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. Furthermore, in Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012) the Court held that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria. Lastly, in Chavis v. McDonough, No. 18-2928 (2021) the Court held that ankylosis of the spine may be shown based on symptoms of fixation of the joint equivalent to ankylosis. i. The Amended Rating Criteria Initially, the Board notes that during the pendency of the appeal VA amended some of its' criteria for rating musculoskeletal disabilities effective February 7, 2021. See 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021). In this regard, as of February 7, 2021, the only amendment to Diagnostic Code 5243 is the notation that it should be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Therefore, the Board finds that the amendment does not change how this Veteran's back disability is rated. Accordingly, the Board finds that a Remand to provide the Veteran with notice of the new rating criteria and have the claim adjudicating applying it is not required. See Sabonis, supra. ii. Correia, supra, and Sharp, supra. Next, in adjudicating below whether the Veteran meets the criteria for a higher evaluation for his back, the Board has not overlooked the Court's holdings in Correia, supra, and Sharp, supra. Tellingly, the Board finds that the record is adequate to address the concerns raised by the Court in both these cases because the March 2021 VA examiner specifically considered the range of motion of the thoracolumbar spine taking into account the Veteran's complaints of pain with and without weight bearing and resistance in passive and active range of motion. Moreover, at that time the Veteran specifically denied having flare-ups and range of motion studies were not provided. Given the Veteran's statement to the VA examiner, the Board finds that it need not obtain range of motion studies during flare-ups before adjudicating the appeal. Therefore, the Board finds that further delay by remanding this issue to provide the Veteran with a new VA examination is not required. See Sabonis, supra. iii. The Merits of the Back Claim With the above criteria in mind, the Board notes that under the General Rating Formula for Disease and Injuries of the Spine the Board finds that even when considering the Veteran's complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, DeLuca, Jones, and Chavis as well as when considering the appellant's competent reports of his observable adverse symptomatology (see Davidson, supra), he does not meet the criteria for at least the next higher, 20 percent, rating at any time during the appeal because flexion was not less than 60 degrees and the combined range of motion of the thoracolumbar spine was not the 120 degrees or less required for an increased rating. The Board has reached this conclusion because the ranges of motion of the Veteran's back taking into account the above criteria were as follows at his VA examinations: at the February 2011 VA examination forward flexion of the thoracolumbar spine was 80 degrees and the combined range of motion of the thoracolumbar spine was 260 degrees; at the December 2018 VA examination forward flexion of the thoracolumbar spine was 80 degrees and the combined range of motion of the thoracolumbar spine was 170 degrees; and at the March 2021 VA examination forward flexion of the thoracolumbar spine was 70 degrees and the combined range of motion of the thoracolumbar spine was 220 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5237; Fenderson, supra; Hart, supra. The Board also notes that the treatment records also do not document flexion being less than 60 degrees and the combined range of motion of the thoracolumbar spine being 120 degrees or less as well as finds that the Veteran is not competent to provide such a finding because it is medical in nature. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions); Davidson, supra. Consequently, the Board finds that a higher evaluation is not warranted for the Veteran's service-connected back disability under the General Rating Formula for Disease and Injuries of the Spine due to limitation of motion at all times during the appeal. Hart, supra; Fenderson, supra. Similarly, the Board finds that the Veteran does not meet the criteria for a rating in excess of 10 percent for his back disability under the General Rating Formula for Disease and Injuries of the Spine during the appeal period because the record is negative for reports of guarding severe enough to result in an abnormal gait, abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a; Fenderson, supra; Hart, supra; VA examinations dated in February 2011, December 2018, and March 2021. See Colvin, supra. In fact, the February 2011, December 2018, and March 2021 VA examiners opined that he did not have abnormal gait, abnormal spinal contour such as scoliosis, reversed lordosis and/or abnormal kyphosis. See Colvin, supra. Moreover, the Board finds that the Veteran is not competent to provide the missing reports of guarding severe enough to result in an abnormal gait, or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis because this is a medical finding and he does not have the required expertise. See Davidson, supra. Consequently, the Board finds that a higher evaluation is not warranted for the Veteran's service-connected back disability under the General Rating Formula for Disease and Injuries of the Spine due to these other symptoms at all times during the appeal. Hart, supra; Fenderson, supra. Likewise, the Board finds that even when considering the Veteran's complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, DeLuca, Jones, and Chavis as well as when considering his competent reports of his observable adverse symptomatology (see Davidson, supra), he does not meet the criteria for a higher, 40 percent, rating under the General Rating Formula for Disease and Injuries of the Spine due to adverse symptomatology that equates to ankylosis because the record is uniform in documenting at least some back motion and ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992); Also see Owens, supra. In fact, even at its' worst, the 70 degrees of flexion the Veteran had at his most recent VA examinations was still more than 70 percent of normal flexion (i.e., 90 degrees). See 38 C.F.R. § 4.71a, Plate V. Moreover, the December 2018 and March 2021 VA examiners specifically opined that the back was not ankylosed, and the Board finds that these medical opinions are not contradicted by any other medical evidence of record. See Colvin, supra. The Board also finds that the Veteran is not competent to provide the missing diagnosis of ankylosis because this is a medical finding. See Davidson, supra. Moreover, the Board finds the VA examiners opinions as to the Veteran's adverse symptomatology more probative than any lay claims to the contrary even though the symptomatology is observable by a lay person because the examiners have greater medical training. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). Consequently, the Board finds that a higher evaluation is not warranted for the Veteran's service-connected back disability under the General Rating Formula for Disease and Injuries of the Spine due to ankylosis at all times during the appeal. Hart, supra; Fenderson, supra. Likewise, the Board finds that the Veteran does not meet the criteria for a rating in excess of 10 percent for his back disability under the Formula for Rating Intervertebral Disc Syndrome at any time during the appeal period because the record, including the February 2011, December 2018, and March 2021 VA examinations, are negative for his having at least 2 weeks of physician ordered bedrest. See Colvin, supra. In fact, the February 2011 VA examiner opined that he did not have any incapacitating episodes. Id. Moreover, the Board finds that the Veteran is not competent to provide the missing evidence of having physician ordered bedrest because this is a medical finding and he does not have the required training and the medical the records do not show he ever had a total of at least 2 weeks of incapacitating episodes during any 12-month period during the pendency of the appeal. See Davidson, supra. Consequently, the Board finds that a higher evaluation is not warranted for the Veteran's service-connected back disability under the Formula for Rating Intervertebral Disc Syndrome at all times during the appeal. Hart, supra; Fenderson, supra. Given the above, the Board also finds that the criteria for a rating in excess of 10 percent for the Veteran's back disability is not met at any time during the appeal under 38 C.F.R. § 4.71a, Diagnostic Code 5237. See Fenderson, supra; Hart, supra; Davidson, supra; Colvin, supra. In reaching the above conclusions, the Board has also considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, the Board finds that this doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz, supra; Gilbert, 1 Vet. App. at 55-56. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.