Citation Nr: 21075033
Decision Date: 12/17/21	Archive Date: 12/17/21

DOCKET NO. 16-28 513
DATE: December 17, 2021

ORDER

Restoration of a 20 percent disability rating for degenerative arthritis of lumbar spine with posterolisthesis, effective December 1, 2011, is granted. 

For the appeal period prior to December 16, 2014, a rating in excess of 20 percent for the degenerative arthritis of lumbar spine with posterolisthesis is denied.

For the appeal period subsequent to December 16, 2014, a rating in excess of 40 percent for the degenerative arthritis of lumbar spine with posterolisthesis is denied.

REMANDED

Entitlement to a total disability rating due to individual unemployability (TDIU), is remanded. 

FINDINGS OF FACT

1. At the time of the reduction of the rating assigned for the Veteran's degenerative arthritis of lumbar spine with posterolisthesis in a September 2011 rating decision, the 20 percent rating had been in effect for less than five years.

2. At the time of the reduction, there was insufficient evidence showing sustained and material improvement in the Veteran's degenerative arthritis of lumbar spine with posterolisthesis that was reasonably certain to be maintained under ordinary conditions of life and work.

3. Prior to December 16, 2014, the Veteran's degenerative arthritis of lumbar spine with posterolisthesis was manifested by forward flexion greater than 30 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis, incapacitating episodes of intervertebral disc syndrome (IVDS), or associated objective neurological abnormalities other than radiculopathy of the bilateral lower extremities.

4. As of December 16, 2014, the Veteran's degenerative arthritis of lumbar spine with posterolisthesis did not result in ankylosis, incapacitating episodes due to IVDS, or associated objective neurological abnormalities other than radiculopathy of the bilateral lower extremities.

CONCLUSIONS OF LAW

1. The reduction of the rating for degenerative arthritis of lumbar spine with posterolisthesis from 20 percent to 10 percent was improper, and restoration of the 20 percent rating, effective December 1, 2011 is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105 (e), (i), 3.344(a), (b), 4.71a, Diagnostic Code 5242. 

2. The criteria for a rating in excess of 20 percent prior to December 16, 2014, and in excess of 40 percent thereafter for degenerative arthritis of lumbar spine with posterolisthesis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from August 2001 to February 2002 and from July 2002 to February 2004. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in September 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. 

This matter was previously before the Board in May 2021, at which time it was remanded for the RO to issue a statement of the case (SOC). In August a SOC and supplemental SOC were added to the claims file. Thus, the Board finds that the RO substantially complied with the May 2021 Board remand directive and that the matter has been properly returned to the Board for appellate consideration. Stegall v. West, 11 Vet. App. 268 (1998).

1. Propriety of the reduction of the rating for degenerative arthritis of lumbar spine with posterolisthesis from 20 percent to 10 percent, effective December 1, 2011.

This appeal arises out of the Veteran's disagreement with a decision to reduce the rating assigned for her degenerative arthritis of lumbar spine with posterolisthesis (hereinafter, "back disability") from 20 percent to 10 percent, effective December 1, 2011. A claim stemming from a rating reduction action is a claim as to whether the reduction was proper, not whether the veteran is entitled to an increased rating. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992).

Regulations provide that where the reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, rating action will be taken. The reduction will be made effective the last day of the month in which a 60-day period from the date of notice to the payee expires. The veteran will be notified of the proposed reduction, as well as the fact that she has 60 days to present evidence showing why the reduction should not be implemented and may request a hearing. 38 C.F.R. § 3.105(e). The Board observes that the RO complied with § 3.105(e) in that the Veteran was informed of the proposed action in a June 2011 rating decision and was advised of the opportunity to present additional evidence within a 60-day period as well as her right to request a personal hearing. The Veteran did not request a hearing. However, she did submit evidence during the 60-day period in support of her claim, in the form of an x-ray and a July 2011 statement from her VA physician, who indicated that the Veteran suffered from multilevel lumbar degenerative disc disease and facet arthropathy. The diagnoses that applied to the Veteran were lumbar degenerative disease and osteoarthrosis, which manifested in back pain. 

Thus, the Board finds the notice requirements of 38 C.F.R. § 3.105(e) have been met. Thereafter, the reduction was effectuated in the September 2011 rating decision on appeal, which reduced the rating assigned for her back disability from 20 percent to 10 percent, effective December 1, 2011.

The provisions of 38 C.F.R. § 3.344 provide considerations to take into account when determining whether a reduction in a rating is warranted. In this regard, 38 C.F.R. § 3.344(a) notes that rating agencies will handle cases affected by change of medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. It is essential that the entire record of examination and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations less full and complete than those in which payments were authorized or continued will not be used as a basis of reduction. Moreover, though material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). 

Here, the 20 percent rating for the Veteran's back disability was in effect from November 3, 2008, to December 1, 2011, i.e., less than 5 years. Thus, the provisions of 38 C.F.R. § 3.344 pertaining to stabilization of disability evaluations do not apply and reexamination disclosing improvement will warrant a rating reduction. 38 C.F.R. § 3.344(c).

The United States Court of Appeals for Veterans Claims (Court) has further held that several general regulations are applicable to all rating reduction cases, without regard for how long a particular rating has been in effect. The Court has stated that certain regulations "impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon a review of the entire history of the veteran's disability." Brown v. Brown, 5 Vet. App. 413, 420 (1993) (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13). A rating reduction requires an inquiry as to "whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations." Brown at 421. Thus, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but also that improvement reflects an improvement under the ordinary conditions of life and work.

In considering the propriety of a reduction, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated actual improvement. Dofflemyer, 2 Vet. App. at 277.

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 veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. 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.

The basis of disability evaluation 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 Veteran's back disability is rated as degenerative arthritis of the spine under 38 C.F.R. § 4.71a, Diagnostic Code 5242. This disability is evaluated either upon application of the General Rating Formula for Diseases and Injuries of the Spine ("General Formula"), or as IVDS under the Formula for Rating IVDS 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. See VBA Training Letter 02-04 (October 24, 2002). 

Under the General Formula, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; for combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; for muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or for vertebral body fracture with loss of 50 percent or more of the height. The next higher rating of 20 percent is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; for combined range of motion of the thoracolumbar spine not greater than 120 degrees; or for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. A 40 percent rating is assignable for forward flexion of the thoracolumbar spine 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine.

Following a review of the evidence, the Board finds the reduction in the rating for the Veteran's back disability from 20 percent to 10 percent, effective December 1, 2011, was improper. In this regard, it appears the RO's reduction was based on a VA examination conducted in March 2011, at which time the examiner noted the Veteran's lumbar spine range of motion was within in normal ranges for initial and repetitive use as the forward flexion was limited to 90 degrees and extension to 30 degrees, without evidence of radiating pain, muscle spasm, guarding, atrophy, or ankylosis. The examiner concluded that the Veteran's disability did not affect the Veteran's occupation.

Here, however, the Board finds pertinent the Veteran's competent reports, as well as the July 2011 findings of her VA doctor, contradict any finding of maintained, material improvement.  The July 2011 report showed less than normal movement in the Veteran's back, evidenced by reports of painful motion. Further, in April 2012 an assessment revealed the Veteran continued to experience low back pain with lumbar radiculopathy, which the Board interprets to clearly show a lack of sustained improvement. Therefore, based on the evidence on file at the time of the reduction, restoration of the 20 percent evaluation is warranted.

Furthermore, the Board finds it probative that subsequent VA examination reports, wherein the Veteran's back disability continued to show signs of worsening. This is especially relevant when considering that the Veteran was subsequently granted an increased disability rating for her back disability. The Board of course acknowledges that such evidence post-dates the rating decision on appeal and, therefore, the reduction itself. However, as noted above, post-reduction medical evidence may be considered for determining whether a condition has demonstrated actual improvement. Dofflemyer, 2 Vet. App. 277.

Therefore, the Board finds that, at the time of the reduction in the September 2011 rating decision, there was insufficient evidence showing sustained and material improvement in the Veteran's back disability that was reasonably certain to be maintained under ordinary conditions of life and work. Accordingly, the reduction of her back disability rating was improper, and restoration of the 20 percent rating is warranted effective December 1, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.3, 4.7, 4.10, 4.119, Diagnostic Code 5242.

2. Entitlement to a rating in excess of 20 percent prior to prior to December 16, 2014 and in excess of 40 percent thereafter, for a back disability

As noted above, 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. 

Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. 

In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40.

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995).

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016).

As referenced above, the Veteran's back disability is rated under Diagnostic Code 5242, which provides that such is evaluated under either the General Rating Formula for Disease and Injuries of the Spine (General Rating Formula) or the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula).

Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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. Such provides for a 20 percent rating where there is 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. Finally, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a.

Note (1): Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code.

Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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 cervical spine is 340 degrees and 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.

Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.

Note (4): Round each range of motion measurement to the nearest five degrees.

Note (5): For VA compensation purposes, 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.

Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Id.

The appeal period before the Board begins on December 6, 2009, the date VA received the Veteran's claim for an increased rating for her back disability, plus the one-year look-back period. See Gaston v. Shinseki, 605 F.3d. 979, 982 (Fed. Cir. 2010).

As noted above, IVDS may be evaluated under either the General Rating Formula or under the IVDS Formula, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.25 (combined ratings table). However, the Board notes that the record does not show, and the Veteran does not contend, that she ever had an incapacitating episode of IVDS as defined by VA regulations, i.e., required physician prescribed bed rest. In this regard, the VA examinations of record show no IVDS or incapacitating episodes. Therefore, higher ratings under the IVDS Formula are not warranted at any point pertinent to the appeal.

For the reasons below, the Board finds that a rating in excess of in excess of 20 percent prior to December 16, 2014, or in excess of 40 percent thereafter is not warranted under the General Rating Formula. In this regard, the record does not reflect that her range of motion was limited to the extent necessary to warrant higher ratings at any point during the periods on appeal.

A June 2010 VA examination report confirmed a diagnosis of lumbosacral strain. The Veteran's forward flexion was limited to 70 degrees, extension to 20 degrees, right and left lateral flexion limited to 30 degrees, right and left lateral rotation limited to 25 degrees, all with pain. There were no sensory deficits, and there were no signs of IVDS. The examiner found the condition affects the occupation as she could not squat, run, kneel, or walk for long periods.  

At a March 2011 VA examination, the Veteran reported flare-ups with difficulty bending forward or backwards. The examiner noted the range of motion was within in normal ranges for initial and repetitive use as the forward flexion was limited to 90 degrees and extension to 30 degrees, without evidence of radiating pain, muscle spasm, guarding, atrophy, or ankylosis. There were no sensory deficits, and the reflexes were normal. There were no signs of IVDS and the examiner found the condition did not affects the Veteran's occupation. 

In April 2012 an assessment revealed the Veteran experienced low back pain with lumbar radiculopathy after review of a MRI. 

In May 2012, the Veteran underwent a VA examination. At that time, she reported flare-ups manifested as limitations with regard to sitting and sleeping on her back. Range of motion testing showed forward flexion to 90 degrees, extension to 15 degrees, right and left lateral flexion limited to 30 degrees, right and left lateral rotation limited to 30 degrees. Upon repetitive use testing there was pain; however, there was no additional loss in range of motion. Examination showed localized tenderness or pain without guarding or muscle spasm. Muscle strength was normal and she did not have muscle atrophy. The reflex and sensory examination was normal. She had no radiculopathy or other neurological abnormalities, and no IVDS. The examiner indicated there was a functional impact as the Veteran was unable to sit for prolonged periods.

At an October 2013 VA examination, the Veteran reported flare-ups manifested as trouble walking, sitting, and standing for long periods of time. She was unable to run, and felt tingling sensations whenever she sat for an extended period.  Range of motion testing showed forward flexion limited to 90 degrees, extension to 30 degrees, right and left lateral flexion limited to 30 degrees, right and left lateral rotation limited to 30 degrees. Upon repetitive use testing there was pain, however, there was no additional loss in range of motion. Upon examination, the Veteran had localized tenderness or pain without guarding or muscle spasm. Muscle strength was normal and she did not have muscle atrophy. The reflex and sensory examination was normal. She had no radiculopathy or other neurological abnormalities, and no IVDS. 

The Veteran underwent a VA examination in April 2015. At that time, she reported flare-ups which manifested as stiffness with difficulty bending and trouble sleeping due to discomfort from the pain. Range of motion testing showed forward flexion limited to 30 degrees, extension to 15 degrees, right and left lateral flexion limited to 15 degrees, and right and left lateral rotation limited to 20 degrees, all with pain. Upon repetitive use testing there was no additional loss in range of motion. The examiner found there was functional loss as the Veteran has less movement than normal, and pain. There was evidence of localized pain, however there was no evidence of guarding or muscle spasm. The muscle strength, reflex, and sensory examination was normal, and she did not have muscle atrophy. She had no radiculopathy, other neurological abnormalities, ankylosis, or IVDS. The examiner noted a functional impact as the Veteran had difficulty running, squatting, and walking for long during a flare-up. 

A November 2019 VA examination report showed the Veteran reported flare-ups with worse than usual pain. She also reported functional loss as she experienced limitations with prolonged walking, standing, and sitting. Range of motion testing showed forward flexion was limited to 50 degrees, extension to 15 degrees, right and left lateral flexion limited to 25 degrees, and right and left lateral rotation limited to 25 degrees, all with pain. There was evidence of localized pain; however there was no pain with weight bearing. The Veteran was unable to complete repetitive use testing due to pain. She was not examined after repeated use over time, however the examiner provided the estimated loss in range of motion as follows: flexion was limited to 45 degrees, extension to 10 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 20 degrees. The examiner found pain significantly limited the Veteran's functional ability with repeated use over time as flexion would be limited to 50 degrees, extension to 15 degrees, right and left lateral flexion limited to 25 degrees, and right and left lateral rotation limited to 25 degrees. The Veteran had a muscle spasm, however, it did not result in abnormal gait. The muscle strength and reflex examinations were normal with no evidence of muscle atrophy. The sensory examination revealed decreased sensation in the right thigh/knee and right lower leg/ankle. Moderate right and mild left radiculopathy were noted. There was no evidence of ankylosis, other neurological abnormalities, or IVDS. The examiner indicated there was a functional impact as the Veteran has limitations in the ability to lift, bend, twist, prolonged standing and walking, bear weight, and sit. 

The Veteran underwent an additional examination in August 2020. At that time, she was diagnosed with degenerative arthritis of the lumbar spine with posterior listhesis. She denied flare-ups. She reported functional loss as there were times when she cannot bend down to pick up anything from the floor. Range of motion testing showed forward flexion limited to 70 degrees with pain, extension to 10 degrees with pain, right and left lateral flexion was limited to 30 degrees, and right and left lateral rotation limited to 30 degrees. There was evidence of localized pain with weight bearing. Upon repetitive use testing there was no additional loss in range of motion. The examiner found pain significantly limited functional ability with repeated use over time, as flexion would be limited to 60 degrees, extension to 10 degrees, right and left lateral flexion limited to 20 degrees, and right and left lateral rotation limited to 20 degrees. There was no evidence of guarding or muscle spasm. The muscle strength, reflex, and sensory examination was normal, and she did not have muscle atrophy. She had no radiculopathy, other neurological abnormalities, ankylosis, or IVDS. The examiner indicated there was a functional impact as the Veteran was sometimes unable to bend down to pick up items from the floor. 

In a September 2020 statement the Veteran reported that her lumbar spine condition had worsened over the years and manifested as numbness and tingling, trouble sleeping, inability to bend at the waist. She also indicated that she had not worked since 2017. 

Based on the foregoing, for the period prior to December 16, 2014, the Board finds that a rating in excess of 20 percent is not warranted under the General Rating Formula. The evidence shows that, for this period, the Veteran's back disability was manifested by forward flexion greater than 30 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups.

Specifically, the March 2009 VA examination reflected forward flexion limited to 50 degrees. The June 2010 VA examination reflected forward flexion limited to 70 degrees, which the Board notes warrants a 10 percent disability rating. Further, the March 2011, May 2012, and October 2013 VA examinations all reflect flexion limited to 90 degrees, which is considered normal and would warrant a noncompensable rating rather than the assigned 20 percent rating. However, the Board has taken into consideration the fact that the Veteran has consistently reported pain with movement, and with evidence of flexion limited to 50 degrees in March 2009, it will not disturb the 20 percent rating for this period of the appeal, which it restored in part due to these reasons, supra. However, this evidence clearly cannot support a disability rating in excess of 20 percent, prior to December 16, 2014.

Furthermore, as of December 16, 2014, as the Veteran's back disability is not shown to result in ankylosis, a rating in excess of 20 percent is not warranted under the General Rating Formula. Specifically, the April 2015, November 2019, and August 2020 VA examinations reflected no evidence of ankylosis. The Board has considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, it finds the Veteran's symptoms are supported by pathology consistent with the assigned 40 percent rating, and no higher. At each of the examinations, the Veteran was still capable of some lumbar spine motion and no ankylosis was found to be present. Thus, a higher rating under the General Rating Formula for such period is not warranted.

With regard to Note (1) of the General Rating Formula, the Board observes that during the appeal, in an October 2020 rating decision, the Veteran was awarded separate ratings for radiculopathy of the bilateral lower extremities as associated with her back disability. The Veteran did not object to or appeal the rating or effective date assigned for those disabilities, and the Board will not disturb that favorable grant at this time. Further, the evidence fails to show that her back disability is manifested by any other associated objective neurologic abnormalities, as VA examinations conducted during the appeal period, as well as treatment records, fail to show the presence of any such conditions. Consequently, separate ratings for associated objective neurologic abnormalities other than radiculopathy of the bilateral lower extremities are not warranted.

In reaching the foregoing determinations, the Board recognizes the Veteran's sincerely held belief that her back disability is more severe than as reflected by the currently assigned ratings. The Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to describe her symptomatology, she is not competent to provide an opinion regarding the severity of her symptomatology in accordance with the rating criteria. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board finds the medical evidence in which professionals with medical expertise examined the Veteran in regard to her back disability, acknowledged her reported symptoms, and described the manifestations of such disabilities in light of the rating criteria to be more persuasive than her own reports regarding the severity of such disabilities.

The Board considered whether additional staged ratings under Fenderson and Hart, supra, are appropriate for the Veteran's service-connected back disability; however, the Board finds that her symptomatology has been stable throughout each period on appeal. Therefore, assigning additional staged ratings is not warranted. Further, neither the Veteran nor her representative have raised any other issues, nor have any other issues been reasonably raised by the record, in connection with the increased rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017).

Therefore, the Board finds that an increased rating for the Veteran's back disability is not warranted at any point during the appeal period. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert, supra. The claims are denied. 

REASONS FOR REMAND

1. Entitlement to TDIU 

The Veteran asserts that her service-connected disabilities prevent her from working, warranting a TDIU. 

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). 

For the entire appeal period, the Veteran does not meet the threshold requirement for a TDIU. 38 C.F.R. § 4.16(a). However, rating boards are instructed to submit to the Director of Compensation Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a). See 38 C.F.R. § 4.16(b).

Multiple VA examiners have addressed the functional impact of the Veteran's disabilities, and on the difficulties the Veteran would encounter when working. The Veteran herself has indicated that she has been unable to work since 2017 due to her disabilities.  Therefore, the Board finds that the evidence arguably suggests that the Veteran is unable to secure and follow a substantially gainful occupation due to her service-connected disabilities, the claim should be submitted to the Director of Compensation Service for consideration of whether a TDIU is warranted on an extra-schedular rating basis pursuant to 38 C.F.R. § 4.16(b).

The matter is REMANDED for the following action:

Refer this case to the Director of Compensation Service for extra-schedular consideration of a TDIU under 38 C.F.R. § 4.16(b).

 

 

JEREMY J. OLSEN

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Jackman, Bridget

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.