Citation Nr: 21075581 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 16-26 263 DATE: December 20, 2021 ORDERED Entitlement to an initial rating higher than 20 percent for service-connected lumbosacral strain with degenerative joint disease (hereinafter "back condition") is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's service-connected back condition has been manifested by, at worst, limitation of forward flexion to 50 degrees, with pain and associated functional limitations. 2. At no point has the Veteran's service-connected back condition manifested as favorable or unfavorable ankylosis (or the functional equivalent) of the entire thoracolumbar spine, nor has the Veteran experienced an incapacitating episode requiring bed rest prescribed by a physician. CONCLUSION OF LAW The criteria for entitlement to an initial rating higher than 20 percent for the service-connected back condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1993 to August 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in January 2019. A transcript of the hearing is associated with the claims file. This matter was remanded most recently in July 2021 to obtain updated VA treatment records and allow for Agency of Original Jurisdiction (AOJ) consideration of additional evidence associated with the claims file since the most recent Supplemental Statement of the Case (SSOC). The updated treatment records were obtained and a new SSOC was provided; therefore, further remand is unnecessary. See Stegall v. West, 11 Vet. App. 268, 271. As a preliminary matter, the RO granted service connection for sciatic nerve radiculopathy of the bilateral lower extremities in the September 2014 rating decision. These awards of service connection are considered a full grant of benefits and are separate appealable issues from the ratings assigned for the spine. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). To challenge the downstream element, the Veteran is required to file a separate NOD with the rating or effective date assigned to the radiculopathy ratings. Holland v. Gober, 10 Vet. App. 433, 435 (1997). In the notification letters sent with these rating decisions, VA accurately notified the Veteran of the awards of service connection and separate ratings and of his option to file a NOD if he disagreed. The ratings for radiculopathy of the bilateral lower extremities were not in the May 2016 Statement of the Case, or the February 2021 and August 2021 Supplemental Statements of the Case, so the Veteran has no reason to believe those ratings are part of his appeal. The Board will not address the separate ratings for radiculopathy of the bilateral lower extremities, as they are not on appeal to the Board. To the extent that the Veteran disagrees with these ratings, he can file a separate claim for increased ratings. Increased Rating The Veteran seeks an initial rating higher than 20 percent for his service-connected back condition. The Veteran's back condition is rated under 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Code 5242. Under the General Rating Formula, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, 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 of 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; and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. 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. See id. Note (5). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. Additionally, 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. The Veteran was afforded VA spine examinations in December 2013, February 2016, December 2020, and April 2021. The Board recognizes that some of the examinations are deficient as to the requirements set out in Correia v. McDonald and Sharp v. Shulkin. That does not mean, however, that all the objective findings noted therein are not probative. Notably, the examinations are entitled to probative value regarding the other findings in the report, as the deficiency with respect to an inadequate discussion of flare-ups has no obvious impact on the physical findings from the examination. Accord Mozingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("even if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight...[I]f the opinion is merely lacking in detail, then it may be given some weight based upon the amount of information and analysis it contains."). At the December 2013 examination, the Veteran reported flare-ups preceded by bending, lifting, carrying, standing, and sitting too long in any one spot. Initial range of motion (ROM) testing revealed forward flexion to more than 90 degrees, pain in all movements, and a combined ROM of 230 degrees. Repetitive use testing revealed no additional limitation of motion, but the examiner noted additional functional loss, including less movement than normal and pain on movement. In the remarks section of the examination report, the examiner estimated that repetitive movement flares would result in an additional loss of 10 degrees in forward flexion and 10 degrees in lateral flexion bilaterally, with fatigue and moderate loss of overall strength and coordination due to pain. The Veteran's entire lumbar spine was tender to palpation, and he had muscle spasm resulting in abnormal gait or spinal contour. He had normal strength and no ankylosis, no other neurologic abnormalities, and no intervertebral disc syndrome (IVDS). As for functional impact, the examiner stated that he did not expect the Veteran to tolerate physical labor, but sedentary employment should be tolerated. At the February 2016 examination, the Veteran reported flare-ups a couple of times a week, lasting two days, with pain shooting up his back and from his feet up his legs. Initial ROM testing revealed forward flexion to 80 degrees, pain in all movements but not with weight-bearing, and a combined ROM of 220 degrees. Repetitive use testing revealed no additional limitation of motion or function, and the examiner did not estimate any additional limitation of motion or function with repeated use over time or flare-ups. The Veteran's entire lumbar spine was tender to palpation, and he did not have muscle spasm or guarding. He had normal strength and no ankylosis, no other neurologic abnormalities, and no IVDS. As for functional impact, the examiner noted that the Veteran was limited in lifting, walking, running, and swinging an axe, pick, and shovel. The examiner concluded the examination report by noting that the findings on examination were variable and non-reproducible, rendering the examination unreliable for rating purposes. The Board is cognizant of the Veteran's reported concerns as to the February 2016 VA examination. At the January 2019 Board hearing, he testified that that the examination was only four or five minutes, the examiner wouldn't talk to him, and no tool was used to measure how far he could bend his back. The Board notes that the examiner did not explicitly state that a goniometer was used for ROM testing. Based on the Veteran's concerns and the February 2016 examiner's conclusion that the examination findings were variable and non-reproducible, the Board affords this examination limited probative weight. At the October 2020 examination, the Veteran reported severe flare-ups one to two times a week lasting from a few hours to two days. Initial ROM testing revealed forward flexion to 75 degrees, pain in forward flexion and extension and with weight-bearing, and a combined ROM of 215 degrees. In the remarks section of the examination report, the examiner noted that there was evidence of pain on passive ROM testing, but no pain on non-weight-bearing testing. Repetitive use testing revealed no additional limitation of motion or function, and the examiner determined that pain, weakness, fatigability, and/or incoordination did not limit functional ability with repeated use over a period of time. The examiner separately determined that pain and lack of endurance limited functional ability with flare-ups, estimating that forward flexion would be limited to 65 degrees and combined ROM would be limited to 195 degrees. The Veteran's lower lumbar spine was tender to palpation, and he had muscle spasm, but it did not result in abnormal gait or spinal contour. He had normal strength and no ankylosis, no other neurologic abnormalities, and no IVDS. As for functional impact, the examiner stated that he did not expect the Veteran to tolerate physical labor, but sedentary employment should be tolerated. As for functional impact, the examiner noted that some flare-ups from walking and standing limited the movement of his trunk due to severe pain. Shortly after the October 2020 examination, additional VA records that the examiner was not able to review were associated with the claims file, and so the RO obtained an addendum medical opinion addressing the potential impact of these records on determinations in the examination report. The December 2020 addendum examiner stated that he reviewed the October 2020 examination and the overall VA e-folder, and then opined that the ROM estimates as to repeated use and flare-ups in the examination report appeared accurate and did not change based on the subsequently added records. At the April 2021 examination, the Veteran denied flare-ups, but separately reported that his back pain radiates into both legs if he stands longer than 15 minutes, he cannot sit or sleep in any position for too long due to pain, and that if he were working, he wouldn't be able to move. Initial ROM testing revealed forward flexion to 60 degrees, pain in all movements but not in weight-bearing or non-weight-bearing, and a combined ROM of 110 degrees. The examiner noted that passive ROM was not appropriate for back testing. Repetitive use testing revealed no additional limitation of motion or function. The examiner determined that pain significantly limits functional ability with repeated use over time, and estimated that forward flexion would be limited to 50 degrees and combined ROM would be limited to 100 degrees. The Veteran's lumbar spine was tender to palpation, but the examiner noted that the reported severity was out of proportion to the examination. The Veteran did not have localized tenderness, guarding, or muscle spasm. Strength testing was normal, and there was no ankylosis and no other neurologic abnormalities. The examiner diagnosed the Veteran with IVDS and marked that the Veteran had not been prescribed bed rest by a physician in the past 12 months. As for functional impact, the examiner documented the Veteran's report that he cannot stand or sit in one position for too long due to pain, but also commented that if the Veteran "embark[ed] on a good PT program accompanied by weight loss and proper nutrition and exercise, his perceived back pain would allow him to hold down some type of meaningful employment." The Veteran's private and VA treatment records are associated with the claims file. In December 2013, he reported chronic low back pain and denied any bowel or bladder dysfunction, and his provider observed that he had a slight limp to his gait. In May 2014, he continued to report chronic lower back pain, and his provider noted that he had a very dramatic reaction to light palpation of his mid- and paraspinous regions of the lumbar spine. In July 2014, he reported 7.5/10 low back pain aggravated by walking, sitting, and standing, and his provider observed that he had reduced lumbar lordosis in standing. In March 2017, he reported 9/10 low back pain, though his spine was not tender to palpation. In April 2017, he reported 8/10 lumbar back pain aggravated, by sitting, walking, and being on his hands and knees, and his provider observed that his bilateral lumbar paraspinals were tender to palpation and he had slightly reduced lumbar lordosis in quiet standing, but separately noted that there were no significant gait deviations. In September 2017, he denied any bowel or bladder dysfunction. In June 2018, he reported lumbar spine pain but separately denied back pain on the date of his visit, and his provider prescribed new medication for back muscle spasm. In September 2018, he reported that his lumbar back pain impaired his ability to walk, and his provider observed that he had mildly antalgic gait. In June 2020, he continued to complain of chronic low back pain. See VA Treatment Records from December 2013 to June 2020. He also consistently reported low back pain across his chiropractic treatment from July 2020 to August 2020. See, generally, Lebanon Chiropractic Clinic Records. Separately, in July 2020, the Veteran was given an MRI of the spine due to his complaints of low back, mid back, and neck pain interfering with activities of daily living such as walking. His provider determined that he had right L5-S1 paracentral disc protrusion with mild mass effect on the traversing right S1 nerve root and mild discogenic changes elsewhere without significant mass effect on either the spinal canal or neural foramina. See July 2020 Lebanon Community Hospital Records. The Board has also considered the Veteran's January 2019 Board hearing testimony, in which he testified that he can't stand back up when pulling weeds and ends up on the floor in pain when dropping something. After review of the medical and lay evidence, the Board finds that an initial rating higher than 20 percent is not warranted throughout the appeal period. The more persuasive evidence shows that the Veteran has not had forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine, and at no point has he had unfavorable ankylosis of the entire thoracolumbar spine. Similarly, at no point throughout the appeal period did the Veteran have symptoms approximating the functional equivalent of ankylosis of the entire thoracolumbar spine. See Chavis v. McDonough, 34 Vet. App. 1, 20 (2021). In Chavis, the CAVC noted that the rating criteria define ankylosis in terms of limitation of motion. See 38 C.F.R. § 4.71a, General Rating Formula, Note (5) (ankylosis is a condition in which the spine or a spinal segment is fixed in flexion or extension). Essentially, ankylosis contemplates "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012); see also Villareal v. Principi, 18 Vet. App. 13 (2001) (defining ankylosis to mean that "a joint is fixed, or 'frozen' in one position."). In concluding the Veteran's impairment is not functionally equivalent to ankylosis, the Board considered the Veteran's lay statements and principles outlined in 38 C.F.R. §§ 4.40 and 4.45, and based the rating on the extent to which motion is limited by the factors outlined in those regulations. In this case, although the Board acknowledges the Veteran's reports of pain and difficulty carrying out some daily activitiesall indicative of some functional loss the Board concludes that such functional loss is not consistent with that contemplated by ankylosis. Notably, there is no suggestion of any limited motion of the spine comparable to any type of immobility; he was still able to perform forward flexion and his forward flexion was limited to 50 degrees, at worst. While his motion may be limited, he has not alleged functional impairment comparable to that experienced by an individual with immobility of part of the spine. While his back condition may interfere with some activities of daily living, such interference is fully contemplated by the assigned schedular rating. The DeLuca concepts of functional loss, painful motion, etc. are still used to apply the rating criteria found in the diagnostic codes. Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016) and Mitchell v. Shinseki, 25 Vet. App. 32, 36 (2011). The Thompson court explained: "Section 4.40 also makes clear that functional loss may be due to pain and that pain may render a part seriously disabled. When evaluating a disability, § 4.40 provides a broad canvas. However, whatever the background, an applicant for disability benefits is rated based on the criteria set forth in § 4.71a." Thompson, 815 F.3d at 786. So, in other words, pain alone without it resulting in any functional loss is not enough to warrant an increased rating. Here, he has been able to perform repetitive use testing with no additional loss of function or range of motion. As such, the current ratings adequately compensate him for his pain with limited motion and functional impairment, and higher ratings are not warranted under DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995), nor is his disability the equivalent of ankylosis. The Board notes that the Veteran underwent ROM testing in July 2014 and April 2017 at physical therapy visits. The Board has considered the measurements noted at these visits but finds that they are contradicted or otherwise outweighed by the other evidence. Initially, it is unclear whether measurements were made using a goniometer. See 38 C.F.R. § 4.46. This record is also contradicted by earlier and later medical treatment records. Across all ROM testing confirmed as measured with a goniometer, the Veteran's forward flexion has, at no point, been recorded as less than 50 degrees. Separately, VA examiners and providers have commented that the Veteran's presentation of his back condition is dramatic and out-of-proportion to their findings. See May 2014 Emergency Department Note; October 2021 VA Examination. Thus, considering the Veteran's disability picture in its entirety, the Board finds that these measurements taken in the context of physical therapy evaluations do not warrant assigning a higher rating. The Board also considered whether a higher rating may be warranted under Diagnostic Code 5243 based on incapacitating episodes rather than limitation of motion; however, there is no evidence that at any time during the appeal period the Veteran has experienced incapacitating episodes requiring medically prescribed bed rest. While he may voluntarily restrict his physical activities or rest in bed during periods of increased symptoms, VA's rating schedule defines an incapacitating episode as prescribed bed rest from a physician. Separately, the medical evidence does not show that the Veteran has neurological manifestations resulting from his back condition that would warrant a separate rating other than those abnormalities that are already service-connected. Specifically, the Veteran denied bladder and bowel issues, and the examinations and treatment records are negative for other neurological manifestations. Accordingly, an initial rating higher than 20 percent for the Veteran's service-connected back condition is not warranted, and the claim is denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Tierno 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.