Citation Nr: 21074167 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 11-19 753 DATE: December 14, 2021 ORDER A rating higher than 40 percent for degenerative arthritis of the lumbar spine (low back disability) is denied. A rating higher than 20 percent for a left ankle injury, status post-surgical reconstruction (left ankle disability) is denied. FINDINGS OF FACT 1. The Veteran's low back disability has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine. 2. The Veteran's left ankle disability has not been manifested by ankylosis. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 40 percent for the low back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 2. The criteria for a rating higher than 20 percent for the left ankle disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1986 to October 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a December 2019 decision, the Board denied higher ratings for the Veteran's low back and left ankle disabilities. That decision was vacated by the United States Court of Appeals for Veterans Claims (Court) in a July 2021 Order, which granted a joint motion for partial remand (JMPR). The Court remanded the matters for action consistent with the terms of the joint motion. The Veteran testified at a hearing before the undersigned Veterans Law Judge in September 2014. A transcript of the hearing is of record. Increased Ratings 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). Low Back Disability For the following reasons, the Board finds that the criteria for a rating higher than 40 percent for the Veteran's low back have not 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 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). 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 As the Veteran's low back disability has been assigned a 40 percent rating, a higher rating under the General Rating Formula may only be assigned if his low back disability were manifested by unfavorable ankylosis of the thoracolumbar spine. See 38 C.F.R. § 4.71a, DC 5242. The record, including the VA examination reports and treatment records, shows that he has not been found to have ankylosis of the thoracolumbar spine. In the JMPR, the parties agreed that the Board erred in its December 2019 decision by finding that because the Veteran's low back disability has been assigned the highest rating based on limitation of motion, consideration of additional functional loss during flare-ups or with repeated use of the spine over time under the Deluca factors set forth in sections 4.40 and 4.45 of the regulations was not warranted. In this regard, subsequent to the Board's December 2019 decision, the Court held that 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. Accordingly, the assignment of the maximum rating based on limitation in range of motion does not preclude consideration of functional loss under sections 4.40 and 4.45 of the regulations where a diagnostic code provides for a higher rating based on ankylosis. Id. Here, the record shows that the Veteran has not had the functional equivalent of unfavorable ankylosis, as defined in Note (5) to the General Rating Formula, since he has not had any of the manifestations by which unfavorable ankylosis is defined, including during any flare-ups or with repeated use over time. See 38 C.F.R. § 4.71a, DC 5242, Note (5). More specifically, neither the VA examination reports and treatment records, nor the Veteran's statements, show that during flare-ups or with repeated use of the back, his entire thoracolumbar spine is fixed in flexion or extension resulting in 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. See id. In sum, when considering functional loss during flare-ups or with repeated use over time due to factors such as pain, weakness, fatigability, incoordination, or lack of endurance, the record shows that the Veteran's low back disability has not been manifested by the functional equivalent of unfavorable ankylosis of the thoracolumbar spine, as defined in the rating criteria. See id.; see also 38 C.F.R. §§ 4.40, 4.45; Chavis , 34 Vet. App. at 11. 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. As there is no indication that the Veteran would have unfavorable ankylosis of the thoracolumbar spine but for the ameliorative effects of medication, disregarding those effects does not alter the conclusion that his low back disability has not met the criteria for a rating higher than 40 percent under the General Rating Formula. See Jones, 26 Vet. App. at 61. Because the Veteran has not been found to have IVDS of the thoracolumbar spine, the Formula for Rating IVDS under DC 5243 does not apply. See 38 C.F.R. § 4.71a. 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. The Board also notes that the amendments concern when the rating criteria for IVDS under DC 5243 apply. As the does not have IVDS, the amendments are not relevant to the evaluation of his low back disability. Because the preponderance of the evidence is against a higher rating for the Veteran's low 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). Left Ankle Disability The Veteran's left ankle disability has been assigned a 20 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5271. For the following reasons, the Board finds that the criteria for a higher rating have not been met. Diagnostic Code 5271 evaluates disability of the ankle based on limitation of motion. 38 C.F.R. § 4.71a. Under DC 5271, a 10-percent rating is assigned for moderate limitation of motion of the ankle. Id. A 20-percent rating is assigned for marked limitation of motion. Id. Normal range of motion of the ankle is defined as 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. Because a 20-percent rating is the maximum rating that may be assigned under DC 5271, a higher rating is not available under that diagnostic code. The Board notes that DC 5271 was recently revised effective February 7, 2021. 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). The changes specify when limitation of motion of the ankle will be considered moderate or marked. Under new DC 5271, as with former DC 5271, 10 percent and 20 percent ratings apply to moderate and marked limited motion of the ankle, respectively. Id. As the amendments to DC 5271 do not provide for a rating higher than 20 percent, application of new DC 5271 would not afford a higher rating for the Veteran's left ankle disability. The Board has considered whether a higher rating may be assigned under DC 5270, which applies to ankylosis of the ankle. 38 C.F.R. § 4.71a. Under DC 5270, a 30 percent rating is assigned for ankylosis of the ankle in plantar flexion, between 30 and 40 degrees, or in dorsiflexion, between 0 and 10 degrees. Id. A 40 percent rating is assigned for ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion, or eversion deformity. Id. As discussed in detail above, a rating based on ankylosis may be assigned if there is functional loss that is the equivalent of ankylosis, including during flare-ups or with repeated use over time due to factors such as those set forth in sections 4.40 and 4.45 of the regulations, including pain, weakness, fatigability, lack of endurance, and incoordination. See Chavis, 34 Vet. App. at 11. In the JMPR, the parties agreed that the Board erred in its December 2019 decision by not considering whether the Veteran had the functional equivalent of ankylosis pursuant to Chavis. Here, the record, including the September 2009, June 2015, and June 2018 VA examination reports, shows no findings that the Veteran has had ankylosis of the left ankle during the period under review. The June 2018 VA examiner indicated that the Veteran's left ankle disability is not manifested by ankylosis. Regarding the functional equivalent of ankylosis, the VA examination reports show that the Veteran has range of motion of the ankle in both plantar flexion and dorsiflexion, even if limited. He denied flare-ups at the June 2015 VA examination. The June 2018 VA examination report reflects that he stated he had to limit walking during flare-ups, but did not think that flare-ups or repeated use over time caused additional limitation in range of motion. There is no indication that he has had complete limitation of motion of the ankle, including during flare-ups or with repeated use over time, let alone that it has been fixed in plantar flexion or dorsiflexion at the degrees specified in DC 5270, or with abduction, adduction, inversion, or eversion deformity. Accordingly, as the Veteran has not had ankylosis of the left ankle, or the functional equivalent of ankylosis, including during flare-ups or with repeated use over time, DC 5270 does not apply. Diagnostic Code 5270 does not contemplate the ameliorative effects of medication. As the record does not show that the Veteran would have ankylosis of the ankle but for the ameliorative effects of medications, disregarding those effects does not alter the conclusion that DC 5270 does not apply. See Jones, 26 Vet. App. at 61. (Continued on the next page) Because the preponderance of the evidence is against a higher rating for the Veteran's left ankle 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.