Citation Nr: 21074636 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 15-30 664 DATE: December 15, 2021 ORDER For the period prior to July 14, 2021, entitlement to a disability rating in excess of 20 percent for a service-connected lumbar spine disability is denied. As of July 14, 2021, entitlement to a disability rating in excess of 40 percent for a service-connected lumbar spine disability is denied. FINDINGS OF FACT 1. For the period prior to July 14, 2021, the Veteran's back disability did not manifest a flexion of 30 degrees or less; ankylosis; or incapacitating episodes. 2. As of July 14, 2021, the Veteran's back disability displayed forward flexion of less than 30 degrees. 3. As of July 14, 2021, the Veteran's back did not have any ankylosis of any part of the spine. CONCLUSIONS OF LAW 1. For the period prior to July 14, 2021, the criteria a disability rating in excess of 20 percent for a service-connected lumbar spine disability have not been met. 38 U.S.C. § 1155, 5107 (b) (2012); 38 C.F.R. §§ 4.7, Diagnostic Code 5242 (2020). 2. As of July 14, 2021, the criteria for a disability rating in excess of 40 percent for a service-connected lumbar spine disability have not been met. 38 U.S.C. § 1155, 5107 (b); 38 C.F.R. §§ 4.7, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Navy from December 1967 to December 1971, and from November 1975 to November 1977. This appeal comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) October 2016 rating decision of the Agency of Original Jurisdiction (AOJ). Most recently, In June 2021 the Board remanded the case to the AOJ for additional development. A Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, rather than strict compliance, is required. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). After a review of the evidence added to the record in the time since the remand, the Board finds that the AOJ conducted additional development as directed, and that there has been substantial compliance with the remand directives. For the period prior to July 14, 2021, entitlement to a disability rating in excess of 20 percent for a service-connected lumbar spine disability 1. As of July 14, 2021, entitlement to a disability rating in excess of 40 percent for a service-connected lumbar spine disability The Veteran contends that, for the course of the entire appeal, his service-connected back disability warrants a rating in excess of what was assigned. Specifically, the Veteran asserts that a rating in excess of 20 percent is necessary for the period of appeal prior to July 14, 2021 is warranted, and as of July 14, 2021 his disability warrants a disability rating in excess of 40 percent. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Disability ratings of the spine are assigned pursuant to the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes and the General Rating Formula Diseases and Injuries of the Spine. 38 C.F.R. $ 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes, General Rating Formula Diseases and Injuries of the Spine. Nevertheless, the Formula for Rating IVDS Based on Incapacitating Episodes is not raised by the record, because the record is silent for a diagnosis of or treatment for incapacitating episodes due to IVDS; and, therefore, the Formula for Rating IVDS Based on Incapacitating Episodes does not provide an adequate basis for an increased disability rating. 38 C.F.R. $ 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Under the General Rating Formula for Diseases and Injuries of the Spine, a disability rating of 20 percent is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the spine is not limited to 120 degrees; or there is muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour; and a disability rating of 40 percent is assigned when the Veteran manifests a flexion of the thoracolumbar spine of 30 degrees or less; or favorable ankylosis of the entire cervical spine. A disability rating of 50 percent is assigned when there is unfavorable ankylosis of the entire thoracolumbar spine, and a total disability rating is assigned when there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Ankylosis is not raised by the record, because the record is silent for a diagnosis of or treatment for ankylosis; and, therefore, the assignment of a disability rating of 50 percent or a total disability rating is precluded; and the Board shall only consider assigning a disability rating of 40 percent based on limitation of flexion. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. The Board acknowledges that the criteria for musculoskeletal disabilities in 38 C.F.R. § 4.71a were amended, effective February 7, 2021, and the "new" schedular criteria are applicable as of that date. 85 Fed. Reg. 76453 (Nov. 30, 2020). However, regarding the Veteran's diagnosed condition (degenerative arthritis of the spine, codified as diagnostic code 5242) there has been no change to the rating criteria. As discussed below, the Veteran has not been diagnosed with IVDS. Therefore, the updated portions of DC 5243 are not applicable to his claims. The Veteran's treatment records indicate that the Veteran manifested back symptomology throughout the period on appeal. The VA was seen for a VA examination in September 2016. At the time, the examiner diagnosed the Veteran with "arthritis with diffuse bulge of intervertebral disc at L4-5." The Board notes that throughout the Veteran's medical records the diagnosis alternates between arthritis and degenerative disc disease (DDD). For rating purposes, and all intents and purposes, there is no significant difference between the two conditions. The examiner found that the Veteran's forward flexion was limited to 50 degrees, extension limited to 30 degrees, right and left lateral flexion limited to 15 degrees each, and his right and left lateral rotation were not limited at all. At the time, the Veteran did not report any flareups, and there was no additional loss of function or range of motion (ROM) after repetitive use testing. The examiner noted that the Veteran did not have guarding or muscle spasms, but did find that objective evidence of pain was observable. There was no evidence of ankylosis. The Board notes that the examiner did not address the Veteran's lay contentions regarding muscle spasms, nor did they address the August 2016 statement from the Veteran's partner stating that the Veteran would have to routinely "lay on the couch" due to his muscle spasms. However, for reasons addressed below, whether or not the Veteran experienced spasms is not determinative on whether he is entitled to a higher disability rating. In his November 2016 Notice of Disagreement (NOD), and his September 2017 VA Form 9, the Veteran alleges that his physical therapy treatment notes show a limitation of ROM that is more severe than what the September 2016 VA examiner found. Specifically, the Veteran claims that his flexion is limited by "75%." The Board notes that while an August 2016 physical therapy note shows that the Veteran's flexion is "limited by 75%" and his extension is "limited by 100%." However, per regulations, all range of motion testing must be done using goniometers, and the rating schedules rely on an exact range of motion testing, and not more generalized percentages. As such, while the Veteran's physical therapy notes are indicative of back pain, they are not sufficient for rating purposes. The Veteran was next seen for a VA examination in December 2019. The examiner noted that the Veteran was "noted to have" a forward flexion of 60 degrees while taking his shoes off and putting them on, however "for reasons unknown" to the examiner, the Veteran appeared to refuse to make any "movement with forward flexion and extension testing" during active ROM testing. There was no indication of any guarding or muscle spasms. There was no evidence of ankylosis. As the examiner was unable to obtain ROM measurements regarding the Veteran's back disability, the Board finds that the December 2019 VA examination results are inadequate for rating purposes. On July 14, 2021, the Veteran was seen for another VA examination per the Board's June 2021 remand directives. At the time, the Veteran was diagnosed with DDD. The Veteran's forward flexion was limited to 30 degrees, his extension limited to 10, his right and left lateral flexion were each limited to 20 degrees, and his right and left lateral rotation were both limited to 10 degrees. Pain was noted on all axes of movement. The examiner did not perform passive ROM testing, as it was found to be unsafe given the severity of the Veteran's condition. While there was no change to the Veteran's ROM after repetitive use testing, the examiner found that his ROM was significantly reduced during flareups. When experiencing flareups, the Veteran's flexion is limited to 15 degrees, his extension is limited to 5, his right and left lateral flexion are both limited to 10 degrees, and his right and left lateral rotation are limited to 5 degrees each. There was still no evidence of guarding or muscle spasms. There was no evidence of ankylosis. The Board finds that for the period prior to July 14, 2021, the Veteran's back disability, at worst, manifested as forward flexion of the thoracolumbar spine of greater than 30 degrees but less than 60 degrees. This is evidenced by the findings in the September 2016 VA examination. The Board notes that the Veteran is competent to provide evidence that he experiences muscle spasms in his back. However, the evidence does not show that his back spasms caused an abnormal gait or abnormal spinal contour. As the Veteran's forward flexion was not limited to 30 degrees or less, nor did the Veteran have ankylosis of any kind, a disability rating in excess of 20 percent for the period prior to July 14, 2021, is not warranted. The evidence shows that as of July 14, 2021, the Veteran's condition has progressed. This is shown by the July 14, 2021 VA examination where the Veteran's forward flexion is limited to 15 degrees during flareups. As such, as of July 14, 2021, a 40 percent disability rating is warranted. A higher 50 or 100 percent rating is not applicable, because as noted above the Veteran does not have ankylosis of the spine. The Veteran has not been diagnosed with IVDS, and therefore diagnostic code 5243 is not applicable to the Veteran's condition. Based on the above, the Board finds that prior to July 14, 2021, the Veteran's service-connected back disability warrants a disability rating of 20 percent, and 40 percent from July 14, 2021 onwards. The Veteran's claims for a rating in excess of 20 percent (for the period prior to July 14, 2021) and for a rating in excess of 40 percent (as of July 14, 2021) are denied. For the above-stated reasons, the preponderance of the evidence is against the claims, and the benefit of the doubt doctrine is not applicable in the instant appeal. 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). Saudiee Brown Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Neville, 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.