Citation Nr: 21073274 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 14-29 496 DATE: December 8, 2021 ORDER A rating higher than 20 percent prior to May 27, 2014 for curvature of the thoracic spine with herniated nucleus pulposus at L4-5, L5-S1 (disability of the back) is denied. An effective date of May 27, 2014 for the 40-percent rating for disability of the back is granted. A raring higher than 40 percent since May 27, 2014 for disability of the back is denied. FINDINGS OF FACT 1. Prior to May 27, 2014, the Veteran's back disability was not manifested by forward flexion of the thoracolumbar spine limited to 30 degrees or less; by ankylosis; or by acute signs and symptoms requiring bed rest prescribed by a physician and treatment by a physician for a total duration of at least four weeks but less than six weeks during a 12-month period. 2. As of May 27, 2014, the record shows an ascertainable increase in severity of the Veteran's back disability supporting a finding that forward flexion would be limited to 30 degrees or less during flare-ups or with repeated use over time, in light of subsequent examination findings. 3. The Veteran's low back disability has not been manifested by unfavorable ankylosis of the thoracolumbar spine, or by acute signs and symptoms requiring bed rest prescribed by a physician and treatment by a physician for a total duration of at least six weeks during a 12-month period. CONCLUSIONS OF LAW 1. Prior to May 27, 2014, the criteria for a rating higher than 20 percent for disability of the back have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.71a, Diagnostic Code 5242, 5243. 2. The criteria for an effective date of May 27, 2014 for the assignment of the 40-percent rating for disability of the back have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.71a, Diagnostic Code 5242, 5243. 3. Since May 27, 2014, the criteria for a rating higher than 40 percent for disability of the back have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.71a, Diagnostic Code 5242, 5243, REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1992 to September 1994, and from August 1999 to February 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the matter for further development in July 2018 and May 2021. The Veteran testified at a hearing before the undersigned Veterans Law Judge in July 2015. A transcript of the hearing is of record. Increased Rating VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected disabilities in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Diagnostic codes in the rating schedule identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Back Disability For the following reasons, the Board finds that the criteria for a rating higher than 20 percent for the Veteran's back disability prior to May 27, 2014 have not been met. Since May 27, 2014, the criteria for a 40-percent rating, but no higher, have been met. A. Rating Criteria The rating schedule provides for the evaluation of all disabilities of the spine under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (DC 5243). See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. The evaluation of IVDS will be discussed below. The Board notes that revisions to the rating schedule applicable to the musculoskeletal system went into effect on February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020). The Board may consider these changes without remand to the agency of original jurisdiction for consideration in the first instance. See 38 C.F.R. § 20.904(d)(2). These changes will be discussed further below. The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise; thus, the changes to the rating schedule that went into effect on February 7, 2021 do not apply prior to that date. See VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); 85 Fed. Reg. 76453. Under the General Rating Formula, evaluations of disabilities of the thoracolumbar spine are assigned as follows: A 10 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or when the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or when there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or for vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when there is 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 assigned when forward flexion of the thoracolumbar spine is limited to 30 degrees or less; or when there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned when there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned when there is unfavorable ankylosis of the entire spine. Id. The General Rating Formula applies with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. Any associated neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately under an appropriate diagnostic code. Id., Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is from 0 to 90 degrees, extension is from 0 to 30 degrees, left and right lateral flexion are from 0 to 30 degrees, and left and right lateral rotation are from 0 to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (2); Plate V. The normal combined range of motion is 240 degrees. Id. Unfavorable ankylosis is 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., Note (5). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. Disabilities of the thoracolumbar and cervical spine segments are evaluated separately, except when there is unfavorable ankylosis of both segments, which is rated as a single disability. Id., Note (6). Under DC 5243, IVDS may be evaluated under the General Rating Formula, as set forth above, or the Formula for Rating IVDS Based on Incapacitating Episodes, 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, DC 5243. Under the Formula for Rating IVDS, a 10 percent rating is assigned if incapacitating episodes have a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent evaluation is assigned if incapacitating episodes have a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent rating is assigned if the total duration is at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating is assigned if the total duration is at least six weeks during the past 12 months. Id. For purposes of evaluations under diagnostic code 5243, an incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that require bed rest prescribed by a physician and treatment by a physician. Id., Note (1). Effective February 7, 2021, the revised schedule provides that the criteria for rating IVDS under DC 5243 apply only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5243). Diagnostic Code 5242, which pertains to degenerative arthritis and degenerative disc disease other than IVDS, is to be assigned for all other disc diagnoses. No changes were made to the criteria for rating IVDS. A "non-substantive edit[]" was also made to DC 5242 clarifying that it applies to degenerative arthritis and degenerative disc disease other than IVDS. Id. at 76459, 76462. In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). With respect to the joints, it must be considered whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. These considerations thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). B. Analysis The February 2012 VA examination report reflects that the Veteran had persistent back pain. She endorsed flare-ups. Specifically, any strenuous activity, such as sweeping the floors, would cause low back pain and stiffness, which lasted from one to two weeks. She stated that at those times she must sleep on the floor. She also had been experiencing pain radiating in her right leg off and on. Sometimes the pain was intense and the knee would give out. This pain occurred once every two weeks, approximately. Regarding the functional impact, she stated she was limited in her ability to lift when her back was sore. On range-of-motion testing, forward flexion of the thoracolumbar spine was to 80 degrees, with objective evidence of pain beginning at 75 degrees. Forward flexion continued to be to 80 degrees on repetitive testing. Neurological examination was normal, and the examiner did not find signs or symptoms of radiculopathy. The May 2014 VA examination report reflects that the Veteran had constant pain in her back, which had progressively worsened. She took over-the-counter Tylenol, as needed, and Lortab for pain, as needed. She also used heat and ice. She endorsed flare-ups, during which she was "even more limited in all physical activity." Regarding the impact of her back disability on the Veteran's ability to work, the examiner stated that it made physical labor impossible. On range-of-motion testing, forward flexion of the thoracolumbar spine was to 45 degrees, with objective evidence of pain beginning at 40 degrees. She declined to extend her back, stating that she was unable to perform that motion. Right lateral flexion was to 25 degrees, with pain beginning at 20 degrees. Right lateral rotation was to 20 degrees, with pain beginning at that point. The Veteran declined to perform left lateral flexion and rotation movements, stating she was unable to perform those motions. She did not have additional loss in range of motion (in the planes that could be tested) on repetitive-use testing. The examiner declined to state whether there would be additional loss in range of motion, or to what degree, during flare-ups, stating that such an estimate would be pure speculation. The examiner found that the Veteran did not have ankylosis. The examiner also found that the Veteran did not have radiculopathy of either lower extremity, or any other neurologic abnormalities associated with her thoracolumbar spine disability. A March 2017 VA treatment record reflects that the Veteran had increased back pain. She was walking a lot lately. She stretched before and after walking and working out. The September 2018 VA examination report reflects that the Veteran had constant low back pain that varied in nature and intensity. It radiated down the right thigh with episodes of numbness. She did not take pain medication due to the side effects. She endorsed flare-ups of intense pain, which was very sharp in nature. During flare-ups, getting out of the bed was "so painful that [she had] to roll out of bed." She had to give her pelvis and tailbone time to adjust when her "feet hit the floor," as she would "stand there in pain." She also had trouble sitting back down. She had to think about every movement as the pain was so intense. The frequency of flare-ups varied based on activity. They typically lasted two to three days and up to a couple of weeks, but the duration varied based on the cause of the flare-up. She characterized the severity as moderately severe, stating they required bed rest and affected activities of daily living. Regarding functional impairment, she stated she could not sit for very long. If she did "too much," she could not walk the next day. For example, if she vacuumed or swept the floor, she had to lay down or sit in a recliner all day. She added that staircases are especially hard. On range-of-motion testing, forward flexion of the thoracolumbar spine was to 25 degrees, extension to 0 degrees, right lateral flexion to 0 degrees, left lateral flexion to 10 degrees, right lateral rotation to 0 degrees, and left lateral flexion to 20 degrees. There was no additional loss in range of motion on repetitive testing. Passive range-of-motion testing was not performed as it was not feasible to conduct such testing in a safe and reasonable manner, according to the examiner. Range-of-motion testing in non-weightbearing was not performed as such testing was "not applicable," since there was no objective evidence of pain when the spine was in a non-weightbearing position. The examiner found that the limitation in range of motion contributed to functional loss, stating that the Veteran was unable to bend, shift, twist, or lift objects. The examiner indicated that the examination was not being conducted during a flare-up or after repeated use over time. The examiner declined to provide an estimate of any additional loss in range of motion with repetitive use over time or during flare-ups. The examiner further found that the Veteran had muscle spasm and guarding of the thoracolumbar spine resulting in an abnormal gait or abnormal spinal contour. The examiner found that the Veteran did not have ankylosis of the spine. The examiner found that the Veteran had IVDS of the thoracolumbar spine, but that it had not been manifested by episodes of acute signs and symptoms requiring bedrest prescribed by a physician and treatment by a physician during the past twelve months. A December 2019 VA treatment record reflects that the Veteran did exercise walking two to three days per week. She continued to have constant dull low back pain, which was intermittently sharp. At the time of this visit, the severity of the pain was a 2 out of 10. Her medications included ibuprofen (800 mg) as needed ("prn") for pain, and methocarbamol as needed for spasms. The October 2020 VA examination report reflects that the Veteran took nonsteroidal antiinflammatory medication (NSAID) and a muscle relaxer for her back. She endorsed flare-ups, which occurred once per week and lasted one to two days. The flare-ups were moderate. They were precipitated by sitting for extended periods of time, bending, lifting, and sweeping. They were alleviated by time and relaxing. She also used hot and cold pads. On initial range-of-motion testing, forward flexion of the thoracolumbar spine was to 55 degrees. On repetitive testing, forward flexion was to 30 degrees. The examiner found that with repeated use over time, forward flexion would be limited to 25 degrees due to pain. The examiner stated that during flare-ups, the Veteran would have 0 degrees of range of motion in any plane (forward flexion, extension, etc.). The examiner found that the Veteran did not have ankylosis of the spine. The examiner found that the Veteran had IVDS of the thoracolumbar spine, but that it had not been manifested by episodes of acute signs and symptoms requiring bedrest prescribed by a physician and treatment by a physician during the past twelve months. Because the October 2020 VA examiner estimated range-of-motion of the spine of 0 degrees during flare-ups, the Board remanded the claim for clarification to determine whether the Veteran had the functional equivalent of ankylosis during flare-ups. In this regard, the requirement of establishing ankylosis under the General Rating Formula for purposes of assigning a higher rating can be met with evidence of the functional equivalent of ankylosis during a flare-up. Chavis v. McDonough, 34 Vet. App. 1, 11 (2021). This is because "ankylosis is, in essence, a complete limitation of motion." Id. at 10. Thus, an evaluation based on ankylosis may be assigned if there is functional loss that is the equivalent of ankylosis. Id. at 11. In the July 2021 VA addendum, a VA examiner reviewed the October 2020 VA examination report and the prior examination reports, and opined that the estimate in the October 2020 examination report of 0 degrees of range of motion during flare-ups was in error. The examiner estimated that during flare-ups, forward flexion would be to 25 degrees, extension to 10 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 20 degrees. The Board finds that prior to May 2014, the record does not show that the Veteran's forward flexion of the spine was limited to 30 degrees or less, including during flare-ups or with repeated use over time due to factors such as pain, fatigability, incoordination, or lack of endurance. See DeLuca, 8 Vet. App. at 206-07. It also does not show that the Veteran's back disability was manifested by ankylosis. The Board notes that the Veteran also reported pain radiating into her right leg at the February 2012 examination. The General Rating Formula contemplates radiating pain. See 38 C.F.R. § 4.71a, General Rating Formula (DC's 5235 to 5243). Thus, that symptom in itself does not support assignment of a rating higher than 20 percent. While she also reported that her knee sometimes gives out, the record does not show that her low back disability was generally manifested by her knee giving out. The Board must disregard the ameliorative effects of medication in evaluating the severity of a disability, unless the applicable rating criteria specifically contemplate such effects. Jones v. Shinseki, 26 Vet. App. 56, 61 (2012) (holding that a higher rating may not be denied on the basis of relief provided by medication when the ameliorative effects are not specifically contemplated by the rating criteria); but see McCarroll v. McDonald, 28 Vet. App. 267, 273 (2016) (holding that the plain language in DC 7101, which applies to hypertension, contemplated the ameliorative effects of blood pressure medication). The General Rating Formula does not contemplate the ameliorative effects of medication. The evidence does not show that the Veteran was benefiting from the ameliorative effects of medication with regard to her back disability when the February 2012 VA examination was performed. It does not otherwise show that prior to May 27, 2014, the Veteran's forward flexion of the thoracolumbar spine would be limited to 30 degrees or more but for the ameliorative effects of medication. In sum, the criteria for a rating higher than 20 percent under the General Rating Formula were not met prior to May 27, 2014. See 38 C.F.R. § 4.71a, DC 5242. As the Veteran's IVDS of the thoracolumbar spine was not manifested by acute signs and symptoms requiring bedrest prescribed by a physician and treatment by a physician for a total duration of at least four weeks during a 12-month period, the criteria for a rating higher than 20 percent under the Formula for Rating IVDS have also not been met for the period prior to May 27, 2014. 38 C.F.R. § 4.71a, DC 5243. The Boards finds that an effective date of May 27, 2014 is warranted for the current 40-percent rating assigned the Veteran's back disability. That is the date of the May 2014 VA examination, at which she reported progressively worsening back pain. Although the examination report showed forward flexion to 45 degrees, with pain beginning at 40 degrees, no estimate was provided regarding range of motion during flare-ups or with repeated use over time. The examination was not performed during a flare-up. The Veteran stated that she experiences even more limitations in activities when flare-ups occurred. Moreover, the Veteran stated she was unable to extend her back or perform left lateral flexion or rotation, which indicates significant limitation in range of motion. The Board also observes that there is a relatively small difference between flexion limited to 45 degrees, with pain beginning at 40 degrees, and flexion limited to 30 degrees, especially when compared to normal range of flexion of the thoracolumbar spine, which is to 90 degrees. Given the lack of an estimate of functional loss during flare-ups, the Veteran's significant functional impairment of the thoracolumbar spine at the time of the May 2014 VA examination, and the subsequent VA examination findings of flexion limited to 30 degrees or less on initial or repetitive-use testing, the Board finds it reasonable to assume that forward flexion would be limited to 30 degrees or less during flare-ups or with repeated use over time when the May 2014 VA examination was performed. See 38 C.F.R. § 3.102. The evidence does not show an ascertainable increase in the Veteran's back disability supporting assignment of a rating higher than 20 percent rating prior to May 27, 2014. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992). Accordingly, an earlier effective date for the 40 percent rating is not warranted. Since May 27, 2014, the record does not show that the Veteran's back disability has been manifested by ankylosis, or the functional equivalent of ankylosis during flare-ups or with repeated use over time. As discussed above, the July 2021 addendum clarifiesvis-à-vis the October 2020 VA examination reportthat range of motion would not be reduced to 0 degrees during flare-ups. The VA examiners found she did not have ankylosis of the spine. Moreover, to assign a rating higher than 40 percent under the General Rating Formula, the evidence must show unfavorable ankylosis. The record shows that she has not had unfavorable ankylosis, as defined in Note (5). There is also no indication that she would have unfavorable ankylosis but for the ameliorative effects of medication. See Jones, 26 Vet. App. at 61. Accordingly, the criteria for a rating higher than 40 percent under the General Rating Formula have not been met. Since May 27, 2014, the Veteran's IVDS of the thoracolumbar spine has not been manifested by acute signs and symptoms requiring bedrest prescribed by a physician and treatment by a physician for a total duration of at least six weeks during a 12-month period. Therefore, the criteria for a rating higher than 40 percent under the Formula for Rating IVDS have not been met. 38 C.F.R. § 4.71a, DC 5243. The amendments to DC's 5243 and 5242, which went into effect on February 7, 2021, do not include substantive changes to the rating criteria, as discussed above. See 85 Fed. Reg. 76462. Thus, they do not alter the Board's evaluation of the Veteran's back disability for the period since the effective date of the amendments. Because the preponderance of the evidence is against higher ratings for the Veteran's back disability, there is not an approximate balance of positive and negative evidence; therefore, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 999 F.3d 1391, 1395 (Fed. Cir. 2021). P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rutkin, 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.