Citation Nr: 21075742 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-22 773 DATE: December 21, 2021 ORDER Entitlement to an increased rating of 40 percent, but no higher, prior to February 4, 2020 for lumbar spine intervertebral disc syndrome with residuals of a low back injury (lumbar spine IVDS) is granted. Entitlement to an increased rating in excess of 40 percent from February 4, 2020 for lumber spine IVDS is denied. FINDING OF FACT After resolving reasonable doubt in his favor, the Veteran's lumbar spine IVDS has manifested in functional impairment equivalent to flexion limited to 30 degrees or less during the entire appeal period. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating of 40 percent, but no higher, prior to February 4, 2020 for lumbar spine IVDS have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (Codes) 5237, 5243 (2021). 2. The criteria for entitlement to an increased rating in excess of 40 percent from February 4, 2020 for lumber spine IVDS have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5243 (2021). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from February 1969 to September 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA). This case was remanded in December 2019 and May 2021 for further development. In December 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. The Board notes that new and material evidence was received within one year after an August 2011 rating decision continuing the rating for the Veteran's lumbar spine at 20 percent. See November 2011 private treatment records. As a result, that decision remained pending. See 38 C.F.R. § 3.156(b). Entitlement to an increased rating in excess of 20 percent prior to February 4, 2020 and in excess of 40 percent thereafter for lumbar spine IVDS. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In any claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). 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. When evaluating musculoskeletal disabilities based on limitation of motion, there must be consideration of functional loss caused by factors that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.40. Consideration must also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45; see DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) ("functional loss caused by pain must be rated at the same level as if that functional loss were caused by some other factor...that actually limited motion" (emphasis removed)). 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 (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under §§ 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). The provisions of 38 C.F.R. § 4.59 acknowledge that a claimant's disability may cause actual pain or painful motion but still not be severe enough to warrant a compensable rating under the appropriate Code. Pain alone does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system. Pain in, like deformity of or insufficient nerve supply to, a particular joint 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 and endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 38-39 (2011). The Veteran's lumbar spine IVDS is rated pursuant to Codes 5237 and 5243, and the General Rating Formula for Diseases and Injuries of the Spine (General Formula). Although the assigned Codes have changed throughout the appeal period, the disability has always been rated pursuant to the General Formula. Under the General Formula, with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 20 percent rating is warranted for 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 flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. "Unfavorable ankylosis" is defined, in pertinent part, as "a condition in which...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). The Board notes that remand pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017), is not necessary because the Veteran must show unfavorable ankylosis to be entitled to an increased rating in excess of 40 percent. The considerations in Correia and Sharp do not apply to the symptoms that must be shown for unfavorable ankylosis, such as restricted opening of the mouth and a limited line of vision, and thus remand for a new examination would provide little probative value. The record does not reflect, nor has the Veteran stated, that he has any of the requisite symptoms for a finding of unfavorable ankylosis. Accordingly, the Board finds that remand for a new VA examination is unnecessary. During a June 2011 VA examination, the Veteran reported that his pain was constant. November 2011 private treatment records reflect flexion limited to 30 degrees. During a July 2013 VA examination, he reported prolonged standing or sitting could aggravate the pain to a 10 out of 10. The examiner reported that objective evidence of painful motion on flexion began at 25 degrees. Finally, during an August 2017 VA examination, the Veteran again reported constant pain and the examiner opined that the Veteran had less range of motion as functional impairment. For the period prior to February 4, 2020, in light of the Veteran's reports of constant pain, as well as private treatment records and the July 2013 VA examination reflecting flexion less than 30 degrees, the Board will resolve reasonable doubt in the Veteran's favor and finds that his lumbar spine IVDS manifests in functional impairment equivalent to flexion limited to 30 degrees or less. Notably, the August 2017 VA examiner opined that the Veteran's functional impairment manifests in less range of motion. Thus, a rating of 40 percent prior to February 4, 2020 is warranted. The Board notes that the Veteran's bilateral lower extremity radiculopathy, erectile dysfunction, and urinary incontinence has been awarded compensation during the entire appeal period. There are no other neurologic abnormalities associated with the Veteran's lumbar spine disability. Thus, no additional compensation is warranted for neurologic abnormalities. See 38 C.F.R. § 4.71a, General Formula, Note (1). To warrant a disability rating in excess of 40 percent, the evidence would need to show unfavorable ankylosis of the thoracolumbar spine or the entire spine. There is no evidence in the record that the Veteran suffers from the symptoms associated with unfavorable ankylosis at any time during the entire appeal period. Accordingly, an increased rating in excess of 40 percent pursuant to the General Formula period must be denied. While August 2017 and February 2020 VA examiners have noted that the Veteran has lumbar spine IVDS, both examiners opined that the Veteran did not have any episodes of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician. Treatment records corroborate the examiners' opinions. Thus, a rating in excess of 40 percent pursuant to the Formula for Rating IVDS Based on Incapacitating Episodes is also not warranted. See 38 C.F.R. § 4.71a. Because a rating in excess of 40 percent is not warranted pursuant to the General Formula or the Formula for Rating IVDS Based on Incapacitating Episodes, entitlement to an increased rating in excess of 40 percent during the entire appeal period must be denied. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Sandler, 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.