Citation Nr: 21072408 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 16-53 828 DATE: December 3, 2021 ORDER The claim of entitlement to a disability rating of 40 percent, but no higher, prior to December 20, 2019, for intervertebral disc syndrome (IVDS) (previously rated as lumbar strain), is granted. The claim of entitlement to a disability rating in excess of 40 percent for IVDS from December 20, 2019 is denied. The claim of entitlement to service connection for a neurological disorder of the right lower extremity is dismissed. FINDINGS OF FACT 1. Prior to December 20, 2019, the Veteran's lumbar spine condition was manifested by decreased range of motion on flexion to less than 30 degrees (at worst), or the functional equivalent, but not by symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. 2. From December 20, 2019, the Veteran's IVDS has been manifested by decreased range of motion on flexion to 25 degrees (at worst), but not by symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. 3. While in remand status, a September 2021 rating decision granted the Veteran's claim of entitlement to service connection for radiculopathy of the right lower extremity. CONCLUSIONS OF LAW 1. Throughout the period on appeal prior to December 20, 2019, the criteria for a rating of 40 percent, but no higher, for a lumbar spine condition have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5242-5243. 2. From December 20, 2019, the criteria for a rating in excess of 40 percent for IVDS have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5243. 3. As the benefit sought on appeal for the matter of service connection for a neurological disorder of the right lower extremity has been granted, there remains no case or controversy as to that issue and the criteria for dismissal have been met. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Air Force from March 1979 to April 1987, September 1996 to February 2007, and March 2007 to July 2009, with additional service in the Air Force National Guard. These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's electronic claims file. In a May 2019 remand, the Board directed the Agency of Original Jurisdiction (AOJ) to afford the Veteran a VA examination to assess the current severity of her service-connected lumbar spine disability, to include compliance with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016), noting the Veteran's assertion that her condition worsened since her last examination. In January 2021, the Board again remanded the matter, finding that a December 2019 VA examination did not provide range of motion measurements for weight-bearing or non-weight-bearing of the back. Further, pain was reported on motion during the examination; however, the point during range of motion where pain started was not noted. In short, the examination did not comply with the requirements in Correia, and the RO's development therefore did not substantially comply with the Board's remand directives pursuant to Stegall v. West, 11 Vet. App. 268 (1998). In its remand, the Board directed (among other things) that a new examination be provided to determine the current level of severity of the Veteran's service-connected lumbar spine disability and directed the examiner to determine whether the Veteran's range of motion results from the December 2019 VA examination would have been reduced if tested in both weight-bearing and non-weight-bearing. For the reasons outlined below, the Board finds that the AOJ substantially complied with the Board's directives in so far as it adequately addressed entitlement to a rating in excess of 40 percent, based on the current August 2021 VA examination evidence. However, while the August 2021 VA examiner acknowledged the directive to estimate whether the Veteran's range of motion during the December 2019 VA examination would have been reduced if tested in both weight-bearing and non-weight-bearing, the examiner did not provide this estimation, stating only that they were unable to make such an estimate without resort to speculation as the examiner "did not perform [the] 2019 exam." This explanation is not fully adequate as an examiner is expected to offer an opinion on the degree of additional range-of-motion loss due to pain on use or during flare-ups based on estimates derived from information procured from relevant sources, including a Veteran's lay statements. See e.g., Sharp v. Shulkin, 29 Vet. App. 26, 33-34 (2017). Despite this incomplete compliance in the examiner's opinion, as there is no evidence of ankylosis or symptoms functionally equivalent to ankylosis, the Board is granting the most beneficial possible rating of 40 percent for the entire appeal period and there is no prejudice to the Veteran in proceeding without additional remand for retrospective estimation opinion evidence. Further, as outlined in section 2 below, lay and other medical evidence generated contemporaneous and subsequent to the December 2019 examination do not suggest that the Veteran would have been eligible for an even higher rating in excess of 40 percent based on limitation of motion or immobility of the spine. See Chavis v. McDonough, 34 Vet. App. 1 (2021). As such, the Board concludes that resolution of the appeal based upon the evidence currently of record will produce both the most favorable and most efficient outcome for the Veteran. Increased Ratings Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 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 military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In this case, the Veteran's currently diagnosed spine condition (IVDS) is rated under 38 C.F.R. § 4.71a, DC 5243, which provides for IVDS to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS provides that a 10 percent rating is warranted for IVDS with 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 for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. Note 1 to DC 5243 provides that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Effective February 7, 2021, DC 5243 for IVDS was amended to direct that this Code was to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root, and that DC 5242 was to be assigned for all other disc diagnoses. 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. Unfavorable ankylosis is defined as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. In this case, as the Veteran is already rated for relevant neurological conditions, the Board will not address these additional symptoms and conditions. 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. Section 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). Factors outlined in DeLuca may result in a higher evaluation than one based solely on limited motion if a claimant demonstrates functional loss equivalent to that contemplated by the higher evaluation. See Chavis, 34 Vet. App. at 10. 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, 28 Vet. App. 158, 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." Here, the spine has no opposite joint. In Sharp, 29 Vet. App. 26, 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. 1. The claim of entitlement to a disability rating of 40 percent, but no higher, prior to December 20, 2019, for IVDS (previously rated as lumbar strain), is granted. The Veteran contends that her spine disability warrants an increased rating throughout the period on appeal. Specifically, she contends that during the period on appeal, her disability has warranted a 40 percent rating. See November 2016 Notice of Disagreement (NOD). Resolving all reasonable doubt in favor of the Veteran, the Board finds the evidence at least in balance as to whether the Veteran's spine condition warrants a 40 percent disability rating during the rating period prior to December 20, 2019. Starting with the Veteran's testimony before the Board, the Veteran stated that she only recalled having had one VA examination in 2011 and that it was her belief that her lumbar symptoms had worsened since that examination. While the March 2011 VA examination occurred prior to the current appeal period, (and while the Veteran in fact received one additional examination in October 2016), the Board finds that the range of motion evidence recorded during the 2011 examination provides relevant context to the lay and medical evidence generated during the current appeal period. Specifically, even in 2011, the VA examination showed that the Veteran's range of motion on forward flexion was limited to 40 degrees, and that she experienced pain on all movements and had mild spasm palpable in her low back. The Veteran accurately recalled the VA location where she received this examination and accurately recalled her difficulty in moving side to side and bending down during her range of motion testing on examination. The Board finds the Veteran's testimony credible that she perceived her symptoms to have worsened in the years since the 2011 examination. Next, while the evidence of record in fact shows that the Veteran received another VA examination in October 2016, the Board finds the probative value of this examination low given the lack of data included in range of motion testing. This examiner recorded the Veteran's forward flexion as limited to 70 degrees but did not note the point at which pain began, despite the Veteran's contemporaneous lay report that she experienced pain with bending over and sitting. The examiner further noted the Veteran's report of "constant" low back pain caused by prolonged standing, sitting, walking, and bending, but the examiner did not explain her conclusion that pain, weakness, fatigability or incoordination would not significantly limit the Veteran's functional ability with repeated use over time. Additionally, the examiner did not acknowledge or appear to consider the contemporaneous VA treatment data when evaluating the functional impairment caused by the Veteran's lumbar spine condition or the existence of flare-ups. As such, the Board does not find the range of motion measurements to be conclusive evidence of the severity of the Veteran's condition for rating purposes. Instead, the Board finds adequate support to assign the next higher 40 percent disability rating based on contemporaneous VA treatment records and the Veteran's credible reports of worsening of her symptoms during the appeal period. For example, VA treatment records starting in July 2016 show that the Veteran received physical therapy for her low back pain, having reported the onset of overall worsening of her condition to be May 2016. An evaluating clinician noted the Veteran's range of motion to be "limited 75% in all planes with an increase in back pain." The Board interprets this to indicate that the Veteran's range of motion was likely limited at this time to less than 30 degrees. Based on this objective medical and lay evidence of limitation of motion during the appeal period, the Board finds a 40 percent rating warranted throughout the period on appeal (i.e., from the receipt of the Veteran's intent to file for increase). Having already sympathetically considered the evidence in granting an increase to 40 percent, the Board finds no factual basis to award an earlier effective date than the Veteran's intent to file. See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). Additionally, the evidence is against a rating in excess of 40 percent prior to December 20, 2019 for IVDS based on incapacitating episodes as 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 Board finds no evidence in the Veteran's VA treatment records, in her lay statements, and in VA examination evidence that the Veteran was prescribed bed rest during this appeal period. Further, the preponderance of the evidence is also against a rating in excess of 40 percent for IVDS under the General Rating Criteria. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain and fatigability; however, these reports do not suggest the Veteran was immobilized due to her symptoms or that even her most severe symptoms would approximate unfavorable ankylosis of the entire thoracolumbar spine. The Veteran does not contend that she experiences ankylosis and contemporaneous VA treatment records do not indicate the presence of any such symptom or its functional equivalent. For the foregoing reasons, the evidence is at least in equipoise as to whether a 40 percent rating, but no higher, is warranted during the appeal period prior to December 20, 2019. Having resolved all reasonable doubt in favor of the Veteran, the appeal is granted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. The claim of entitlement to a disability rating in excess of 40 percent for IVDS from December 20, 2019. As noted in section 1 above, the Veteran contends that during the period on appeal, her disability warranted a 40 percent rating. See November 2016 NOD. While the Veteran is already in receipt of a 40 percent rating from December 20, 2019, a claimant is generally presumed to be seeking the maximum benefit allowed and a claim remains in controversy where less than the maximum available benefit is awarded. Having fully considered the Veteran's appeal in this matter, the Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for the Veteran's service-connected lumbar spine condition under DC 5243 or any other applicable Code. 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 August 2021 VA examination; December 2019 VA examination. The evidence of record, to include the Veteran's lay statements during this period, do not support a finding that she was prescribed bed rest for her IVDS. The preponderance of the evidence is also against a rating in excess of 40 percent under the General Rating Criteria. According to the January 2021 VA examination, the Veteran's symptoms included pain, swelling, crepitus, stiffness, muscle spasms, tenderness, decreased range of motion, and numbness and tingling in extremities. The Veteran reported intermittent difficulty bending and pain with walking distances of 300 feet or more, standing 15 minutes or more, and with sitting for periods 10 minutes or more. The Veteran reported flare-ups of her symptoms, multiple times per day, lasting 30 minutes or more, which were relieved by rest and medication. On examination, active and passive range of motion was abnormal, showing the Veteran's forward flexion limited to 30 degrees, her extension limited to 20 degrees, and her right and left lateral flexion and rotation each limited to 20 degrees. There was evidence of pain with weight-bearing, crepitus, and moderate pain on palpation. The Veteran was able to complete repetitive testing of three repetitions with no additional loss of function or decreased range of motion. Pain and lack of endurance was noted to interfere with functional ability with repeated use over time; however, range of motion measurements remained consistent with those on active and passive testing. The Veteran was not examined during a flare-up, but the examiner was able to estimate that pain, fatigability, and lack of endurance would further reduce her forward flexion to 25 degrees and would limit her extension and right and left lateral flexion and rotation each to 15 degrees. The examiner assessed the Veteran to have moderate pain interference with prolonged sitting and standing as factors that contributed to her disability. The Veteran had muscle spasm and guarding resulting in abnormal gait or spinal contour. The Veteran's muscle strength testing was normal with no atrophy. The examiner found no ankylosis of the spine. The Veteran reported that she occasionally used a leg brace as an assistive device for pain related to her IVDS and neuropathy. The Board finds this examination adequate in its detail and description of the Veteran's spine disability. The examination is consistent with other medical and lay evidence of record. The Board acknowledges the Veteran's lay reports of symptoms during the appeal period, including that she experienced functional loss such as due to pain, excess fatigability, and flare-ups. However, even considering this lay evidence, any additional limitation would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine (for a 50 percent rating) or unfavorable ankylosis of the entire spine (for a 100 percent rating). For example, during her testimony before the Board, the Veteran explained that her back condition caused pain and functional impairment after sitting for long periods of time (e.g., after driving), and that she used lidocaine patches for pain relief nightly. The Veteran did not indicate that her spine condition would result in periods of functional immobility of the joint, even during a flare-up. Her testimony along with lay and medical evidence contained in VA treatment records do not support a finding that the Veteran experienced ankylosis or the functional equivalent of ankylosis at any time during the period on appeal as contemplated in Chavis. For example, a January 2020 chiropractic consultation includes the Veteran's self-report of chronic back pain since 2007 and report of a recent flare-up with "dull pain." She identified pain factors such as prolonged static position (sitting) and had increased pain with range of motion but did not report immobility or fixedness of position, even during a flare. The Veteran reported treatment of pain with ibuprofen, heat, and massage. Her proposed treatment plan recommended therapeutic exercise, posture correction, and a home exercise program. No mention of ankylosis is included in her treatment records. To the Board, the record does not show that ankylosis (or its functional equivalent) existed during the period on appeal. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 40 percent for IVDS, previously rated as lumbar strain, for the period from December 20, 2019. 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. 3. The claim of entitlement to service connection for a neurological disorder of the right lower extremity. The Veteran sought service connection for radiculopathy of her right lower extremity disorder, secondary to her lumbar spine disorder. See August 2016 Fully Developed Claim; September 2015 Intent to File. A September 2021 rating decision granted the Veteran's claims of entitlement to service connection radiculopathy of the right lower extremity. This action resolved the claim for service connection. Under 38U.S.C. §7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. As a result of the September 2021 rating decision, no case or controversy regarding the matter of service connection for neurological disorder of the right lower extremity remain, and there is no remaining allegation of error of fact or law for appellate consideration. 38 U.S.C. § 7105(d)(5). Accordingly, the Board is without jurisdiction to review the appeal with respect to this matter, and it is therefore dismissed. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Hart, 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.