Citation Nr: 21072268 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 15-37 562 DATE: December 2, 2021 ORDER From February 7, 2012 to June 17, 2019, an initial rating of 20 percent, but no higher, for a back disability is granted. FINDING OF FACT Resolving doubt in favor of the Veteran, from February 7, 2012 to June 17, 2019, the back disability is manifested by pain, spasms, flare-ups, severe guarding and limitation of motion that more nearly approximate or equate to forward flexion no less than 30 degrees and no greater than 60 degrees. CONCLUSION OF LAW From February 7, 2012 to June 17, 2019, the criteria for an initial 20 percent rating, but no higher, for a back disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.71a, Diagnostic Codes 5237-5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 2009 to February 2012. In August 2018 the Board remanded the appeal for additional development. In November 2020, the Board issued another decision that denied an initial rating higher than 10 percent for the back disability prior to June 17, 2019, and a rating higher than 20 percent thereafter. The Veteran appealed the denial of a rating higher than 10 percent prior to June 17, 2019 to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a July 2021 Joint Motion for Partial Remand (JMPR), the Court issued an order vacating the Board's November 2020 decision, to the extent it denied an initial rating higher than 10 percent for the back disability, and remanded the appeal to the Board for action consistent with the JMPR. Beyond the above, it is valuable to note that the Veteran has been granted a TDIU, and is receiving a 100 percent disability for the entire appeal, since February 07, 2012. Entitlement ot an initial rating in excess of 10 percent for a thoracolumbar disability, characterized as spinal strain, prior to June 17, 2019 Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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 Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The assignment of a particular diagnostic code to evaluate a disability 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 diagnosis, and demonstrated symptomatology. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. §§ 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis). Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton, 25 Vet. App. at 5. The Court also held in Correia v. McDonald, 28 Vet. App. 158 (2016) that the final sentence of 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. Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance," as defined in 38 C.F.R. §§ 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while "pain may cause a functional loss, pain itself does not constitute a functional loss," and, is therefore, not grounds for entitlement to a higher disability rating). 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). 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. 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. The Veteran seeks a rating in excess10 percent for the period prior to June 17, 2019. Prior to the regulatory change, the rating schedule provided for evaluation of disabilities of the spine under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Intervertebral disc syndrome (IVDS) may alternatively be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Note (6). As of February 7, 2021, under the amended criteria the criteria for IVDS will be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other diagnoses. The Veteran's service-connected back disability is currently rated under Diagnostic Codes 5237-5243. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating 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 disability rating is assigned 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 where there is forward flexion of the thoracolumbar spine of 30 degrees or less. A higher 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. In addition, any associated objective neurologic abnormalities are evaluated separately under the appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note 1. For VA compensation purposes, 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 rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula, Note (2); see also Plate V. Alternatively, intervertebral disc disease can be evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes. Under that Formula, a 10 percent rating is assigned where intervertebral disc syndrome is manifested by incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted where incapacitating episodes have a total duration of at least two weeks but less than 4 weeks during the past 12 months. A rating of 40 percent is warranted where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A maximum rating of 60 percent is warranted where the evidence reveals incapacitating episodes having a total duration of at least six weeks during the past 12 months. Incapacitating episodes are defined as requiring bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, IVDS Formula. As of February 7, 2021, under the amended criteria the criteria for IVDS will be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other diagnoses. Initially, the Board notes that at no point throughout the appeal, does the evidence show, nor does the Veteran claim, physician-prescribed bed rest or incapacitating episodes as defined by VA regulation, lasting a total of at least four weeks during any given 12 months period. In this case, in a statement in August 2018, the Veteran reported that due to his back condition he could not get out of bed for days at a time. Although the Veteran has stated that there are periods where he is essentially bedridden due to back pain, 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. The Veteran, as a lay witness not shown to possess medical knowledge and expertise, is not considered competent to diagnosis IVDS or state that he requires physician-prescribed bed rest. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d at 1376-77. Therefore, his statements are not probative in showing that he experiences incapacitating episodes due to IVDS. Significantly, the VA examiner in October 2012 found no evidence of IVDS. Accordingly, the Board finds that he is not entitled to a higher disability rating based upon incapacitating episodes at any time throughout the period on appeal. As the Veteran is not entitled to increased ratings based upon incapacitating episodes, it is necessary to determine whether he is entitled to higher ratings under the General Rating Formula. On VA examination in October 2012, the examiner noted a diagnosis of chronic back strain. The Veteran reported chronic low back pain with muscle spasms. The Veteran endorsed flare-ups associated with prolonged sitting still or sleeping, exacerbated by activity. On examination, the Veteran displayed forward flexion to 85 degrees and 215 degrees of total combined range of motion. The Veteran was able to perform repetitive use testing with no additional functional loss or limitation of motion. Muscle strength was normal with no muscle atrophy. Reflexes and sensory examination were normal. Straight leg raising was negative, bilaterally. There was no radiculopathy or other neurological abnormality noted. He required no assistive devices for ambulation. Imaging studies did not show arthritis. There was no documented tenderness or pain on palpation, no muscle spasm or guarding, and no evidence of arthritis. The examiner determined that the back disability did not impact the Veteran's ability to work. VA treatment notes in June 2013, showed complaints of severe low back pain, rated as 9/10 in severity. The Veteran denied bowel and/or bladder incontinence. He was advised to increase his medication dosage, but he declined. In July 2013, he was seen for back spasms. In May 2014, the Veteran was seen for pain that he described as so intense that it was productive of difficulty breathing and sleeping. He stated that his wife gave him massages sometimes with some improvement. The medications only took the edge off. He denied any numbness/tingling of the extremities or sudden loss of muscle strength. Pain was concentrated in the right center of the spine. The Veteran also complained of stiffness. The clinician observed that the Veteran's gait was normal. There was tenderness upon palpation of the lumbar as well as thoracic region along paraspinals. The Veteran was observed to be very guarded. Range of motion of the lumbar spine was functional during forward bending and extension with mention of pain during both. Straight leg raise was negative, bilaterally. The clinician indicated that the Veteran's back symptoms were most likely related to muscle imbalances and guarding, which contributed to limitation of motion of the spine and posture impairments. A clinician in May 2014, noted that the Veteran's back was painful with minimal exertion. There was ill-defined tenderness over the lumbar spine. The Veteran reported lifting limitations. In a statement in August 2014, the Veteran reported that his back pain had worsened, despite treatment with medication and physical therapy. In a statement in October 2015, the Veteran reported that that he experienced daily back pain and he had difficulty walking even for a short distance due to severe muscle spasms. Subsequent treatment records showed continued complaints of chronic back pain that interfered with his sleep, managed with medication. The Veteran consistently denied change in bowel or bladder. Imaging studies of the lumbar spine in December 2015, were unremarkable. In a statement in August 2018, the Veteran reported that due to his back condition he could not get out of bed for days at a time, he needed constant help from his wife, and that he had difficulty walking. In light of the above medical evidence, which recorded some limited range of motion of the thoracolumbar, along with lay statements from the Veteran describing the severity of his symptoms and endorsing flare-ups, and in consideration of this functional impairment and the holdings of Deluca, Mitchell, Correia, and Burton, the Board finds that from February 7, 2012 to June 17, 2019, resolving all doubt in the Veteran's favor, under the General Rating Formula for Diseases and Injuries of the Spine the Veteran's lumbar spine disability had limitation of motion for which a 20 percent rating is warranted. See 38 C.F.R. §§ 4.40, 4.45, 4.59. 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5242. However, the Board finds that the Veteran is not entitled to a rating in excess of 20 percent for his back disability at any point prior to June 17, 2019. Specifically, the Veteran's lumbar spine was not characterized by ankylosis or forward flexion limited to 30 degrees or less, even in contemplation of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See DeLuca, 8 Vet. App. at 207; see also Mitchell, 25 Vet. App. at 32; Correia, 28 Vet. App. at 158; Sharp, 29 Vet. App. at 26. The recorded range of motion findings show the Veteran's flexion was at worst, to 85 degrees with consideration of pain and repetitive movement. Further, there was no evidence of ankylosis or any limitation of motion that reasonably approximated ankylosis. Therefore, the Board finds that a rating in excess of 20 percent is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. The Board has considered the holding in Correia that a VA examination evaluating a joint disability must record the results of motion testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. While the VA examiner in October 2012 did not record the results of motion testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing, the Board finds that there is sufficient evidence to adequately resolve the Veteran's claim. The Board concludes that a remand for a retrospective opinion that addresses measures of limitation of motion with, repeated use over time, flare-ups, passive range of motion and nonweight-bearing prior to June 17, 2019, would result in needless delay, and is unwarranted. The Board finds that VA has substantially complied with the holdings in both Sharp and Correia with respect to the Veteran's back disability. In addition to considering the orthopedic manifestations of the lumbar spine disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. The Veteran has not alleged, and the evidence does not show, that he has bladder impairment or bowel impairment. No neurological impairment in the lower extremities as a result of his service-connected back disorder was reported, and the VA examiner specifically found no neurologic impairment associated with the back, to specifically include radiculopathy of the lower extremities. For this reason, separate ratings for objective neurological abnormalities were not warranted at any time during the period on appeal. (Continued on the next page) In sum, the Board finds that from February 7, 2012 to June 17, 2019, a rating of 20 percent, but no higher, for the back disability is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.