Citation Nr: 21076329 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 14-28 177 DATE: December 23, 2021 ORDER Entitlement to a disability rating in excess of 40 percent for low back strain with degenerative disc and joint disease is denied. Entitlement to a disability rating in excess of 10 percent for left ankle strain with degenerative joint disease (DJD) is denied. FINDINGS OF FACT 1. The Veteran's low back strain with degenerative disc and joint disease has not manifested by unfavorable ankylosis of the entire thoracolumbar spine. 2. The Veteran's left ankle strain with DJD has not manifested by marked limited motion and there is no evidence of ankylosis of the left ankle. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 40 percent for low back strain with degenerative disc and joint disease are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.71a, Diagnostic Code 5243. 2. The criteria for a disability rating in excess of 10 percent for left ankle strain with DJD are not met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.71a, Diagnostic Codes 5271-5010. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1982 to May 1986 and from October 1987 to July 1989. These matters come before the Board of Veterans' Appeals (Board) from a March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. The Board previously remanded the case for further development in June 2018, at which time the issues of entitlement to service connection for a cervical spine disability, whether the reduction of rating for low back strain from 40 percent to 20 percent from November 1, 20212 was proper, and entitlement to a TDIU were also remanded. Subsequently, in a November 2018 rating decision, entitlement to a TDIU was granted effective July 30, 2012 and in a June 2020 rating decision, service connection for degenerative arthritis and fusion of the cervical spine was granted effective July 30, 2012 and the 40 percent rating for low back strain with degenerative disc and joint disease was retroactively reinstated effective November 1, 2012. As this constitutes a full grant of the benefits sought on appeal, those issues are no longer on appeal before the Board. Increased Rating Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Evaluation of a service-connected disability requires a review of a veteran's medical history with regard to that disorder. However, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. While the entire recorded history of a disability is important for more accurate evaluations, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. 1. Entitlement to a disability rating in excess of 40 percent for low back strain with degenerative disc and joint disease. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the standard 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. 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. 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. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). The Veteran's low back disability is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5243. Diagnostic Code 5243 sets forth the criteria for intervertebral disc syndrome (IVDS). Spine disabilities can be evaluated under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The criteria for rating disabilities of the spine are listed under Diagnostic Codes 5235 to 5243. The code for IVDS (Diagnostic Code 5243), permits rating under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever results in the higher rating when all disabilities are combined. 38 C.F.R. § 4.71a. Effective February 7, 2021, a portion of the rating schedule for evaluating musculoskeletal disabilities of the spine was revised. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243, 5244). Specifically, Diagnostic Code 5243 for IVDS was revised to include an instruction to use this Diagnostic Code only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Diagnostic Code 5242 should be assigned for all other disc diagnoses. When amended regulations expressly state an effective date and do not include any provision for retroactive applicability, application of the revised regulations prior to the stated effective date is precluded. 38 U.S.C. § 5110(g); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997); VAOPGCPREC 3-2000. Therefore, as the amendment discussed above has a specified effective date without provision for retroactive application, the amendment may not be applied prior to its effective date. As of the effective date, February 7, 2021, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. Significantly, the actual rating criteria (the General Rating Formula for Diseases and Injuries of the Spine and the Formula for Rating IVDS Based on Incapacitating Episodes) were not changed. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 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 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. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Unfavorable ankylosis is defined as "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. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note (1) to Diagnostic Code 5243 explains that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. During a February 2012 VA examination, the Veteran complained of pain in the lumbar spine in paraspinal area. Initial range of motion (ROM) testing revealed forward flexion of 50 degrees; extension of 20 degrees; right and left lateral flexion of 25 degrees; and right and left lateral rotation of 25 degrees. The Veteran was able to perform repetitive use testing with at least three repetitions and there was no change in ROM after repetitive testing. Less movement than normal and pain on movement itself contributed to a functional loss. There was no guarding or muscle spasm of the back. Muscle strength testing was normal with no muscle atrophy. Reflex examination revealed hypoactive reflexes, but sensory examination was normal. The Veteran had no radicular pain or other signs of symptoms of radiculopathy. He did not have any other neurological abnormalities or findings related to a thoracolumbar spine (back) condition (such as bowel or bladder problems/pathologic reflexes). The examiner indicated that the Veteran did not have IVDS. During a January 2013 Back Conditions Disability Benefits Questionnaire (DBQ), the Veteran reported that he had been feeling good for a while but when he started working everything got worse again. He experienced back pain into his legs, buttock, and feet, worse with walking or bending over. There was no lower extremity numbness or paresthesia elicited. Initial ROM testing revealed forward flexion of 10 degrees; extension of 15 degrees; right and left lateral flexion of 15 degrees; and right and left lateral rotation of 5 degrees. The Veteran was able to perform repetitive use testing with at least three repetitions and there was no change in ROM after repetitive testing. Less movement than normal and pain on movement itself contributed to a functional loss. There was guarding or muscle spasm of the back resulting abnormal gait. Muscle strength was normal and there was no muscle atrophy. Deep tendon reflexes examination revealed hypoactive reflexes and sensory examinations revealed decreased sensation in lower legs/ankles and no sensation in foot/toes. The Veteran had radiculopathy involving the bilateral sciatic nerves but no other neurological abnormalities. The Veteran regularly used a cane. The examiner indicated that the Veteran did not have IVDS. He used a cane regularly. The examiner observed that the Veteran got up from chairs with effort but no assistance. He walked slow with a cane and had wide-based gait. He had pain with virtually any movement and was unable to lay supine long enough to complete supine straight leg raise. The examiner indicated that the Veteran's thoracolumbar spine disability impacted his ability to work as radiculopathy would limit physical activity. During a May 2017 Back Conditions DBQ, the Veteran reported constant back pain while sitting in the examination room; however, he easily bent over to pull papers out of a large folder he had placed on the floor. He described flare-ups with marked loss of ROM if he twisted wrong, which happened about once a month and lasted for several days. Initial ROM testing revealed forward flexion of 60 degrees; extension of 10 degrees; right and left lateral flexion of 15 degrees; and right and left lateral rotation of 30 degrees. The Veteran was able to perform repetitive use testing with at least three repetitions and there was no change in ROM after repetitive testing. There was guarding resulting in abnormal gait or abnormal spine contour. Muscle strength was normal and there was no muscle atrophy. Deep tendon reflexes and sensory examinations were normal except for decreased sensation in the foot/toes. There was no ankylosis of the spine. The examiner noted the Veteran had radiculopathy involving the sciatic nerve in the right lower extremity but no other neurological abnormalities. The examiner indicated that the Veteran had IVDS, but he did have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The examiner indicated that the Veteran's thoracolumbar spine disability impacted his ability to work as he was unable to do heavy industrial work. He was able to walk with normal gait and pace, carrying a large folder between 14 or 12 mile. During a June 2020 Back Conditions DBQ, the Veteran reported constant moderate lower back pain. He has attended physical therapy, had injections, and took narcotics but stopped taking Oxycodone and all narcotics recently. He described flare-ups with "debilitating severe pain" lasting from an hour to 3 to 4 days to a week where he was lying in bed and could not do anything. As for functional loss, the Veteran reported painful and limited ROM and that his wife had to help him putting on shoes and socks and even underwear sometimes; she had to help him getting in and out of bathtub sometimes. Initial ROM testing revealed forward flexion of 30 degrees; extension of 10 degrees; right and left lateral flexion of 10 degrees; and right and left lateral rotation of 10 degrees. The Veteran was able to perform repetitive use testing with at least three repetitions and there was no change in ROM after repetitive testing. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time or with flare ups. Muscle strength was normal and there was no muscle atrophy. Deep tendon reflexes examination revealed hypoactive reflexes and sensory examination revealed decreased sensation in the left upper anterior thigh and foot/toes. The examiner noted the Veteran had severe radiculopathy involving the bilateral sciatic nerves but no other neurological abnormalities. There was no ankylosis of the spine. The examiner indicated that the Veteran had no IVDS. The examiner indicated that the Veteran's thoracolumbar spine disability impacted his ability to work as he was unable to bend, stoop, or climb stairs without pain. There was no evidence of pain on passive ROM testing or on non-weight bearing testing of the back. Throughout the rating period under appeal, the Board concludes that a disability rating in excess of 40 percent is not warranted as there is no evidence of unfavorable ankylosis of the entire thoracolumbar spine. Rather, the evidence clearly demonstrates that the Veteran has continued to retain some motion in his lower back, albeit severely limited. Findings obtained through the VA examinations included, at least, forward flexion of the thoracolumbar spine to 10 degrees, extension to 10 degrees, bilateral lateral flexion to 15 degrees, and bilateral lateral rotation to 5 degrees, respectively, and that there has been no ankylosis of the spine at any time during the rating period on appeal. Also, as there was motion, the medical evidence of record simply does not show unfavorable ankylosis of the entire thoracolumbar spine, required for the assignment of the next higher rating. See 38 C.F.R. § 4.71a, General Rating Formula. The Board has also considered whether there is any additional functional loss not contemplated in the current 40 percent rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. at 206. Throughout the record, severe pain on motion is shown and the ROMs were severely limited. Additionally, the Veteran complained of inability to bend, stoop, or climb stairs without pain. However, in any event, additional functional loss approximating a finding of unfavorable ankylosis of the entire thoracolumbar spine has not been shown. Accordingly, a rating greater than 40 percent on this basis is not warranted. Id. Separate neurological ratings for bilateral lower extremities associated with service-connected back disability are already granted in this case, and the record does not show any other neurological abnormalities in connection to the back disability. 2. Entitlement to a disability rating in excess of 10 percent for left ankle strain with DJD. The Veteran's left ankle disability is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5271-5010. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic Code 5271 sets forth the criteria for limitation of motion of the ankle and Diagnostic Code 5010 sets forth the criteria for traumatic arthritis. Prior to February 7, 2021, under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limited motion of the ankle. A maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Effective February 7, 2021, VA amended the rating criteria for Diagnostic Code 5271. 85 Fed. Reg. 76,453 (Nov. 30, 2020). Under the new criteria, a 10 percent rating is warranted for moderate limited motion of the ankle (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion.). A 20 percent rating is warranted for marked limited motion of the ankle (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion.). As this regulatory change was enacted during the pendency of this appeal, the Board will consider both the old and new versions of the rating criteria from the effective date and apply the version most favorable to the Veteran. Normal range motion of the ankle, for VA compensation purposes, is from zero degrees ankle dorsiflexion to 20 degrees ankle dorsiflexion and from zero degrees ankle plantar flexion to 45 degrees ankle plantar flexion. 38 C.F.R. § 4.71a, Plate II. The Veteran was provided a VA examination in January 2013. The Veteran reported that his ankle hurt if he walked too far. He denied flare-ups impacting the function of the ankle. ROM testing for the left ankle revealed plantar flexion to 45 degrees or greater and dorsiflexion to 10 degrees, with no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing with no additional limitation in ROM. He had functional loss/impairment in the left ankle due to less movement than normal. He had decreased muscle strength in the left ankle with ankle plantar flexion. Joint stability testing revealed no laxity in the ankle. There was no ankylosis of the ankle. The Veteran used a cane to assist with ambulation. X-ray revealed no acute fracture or dislocation. The Veteran noted that dorsiflexion ROM limitation was due to back and leg pains from his spine condition. A May 2017 Ankle Back Conditions DBQ shows a diagnosis of lateral collateral ligament sprain. The Veteran denied experiencing flare-ups due to the ankle disability. ROM testing for the left ankle revealed dorsiflexion from 0 to 10 degrees and plantar flexion from 0 to 30 degrees, with no pain noted on examination. The examiner indicated that loss of ROM itself contributed to a functional loss. The Veteran was able to perform repetitive testing that did not reveal additional loss of function or range of motion. The examiner indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. Muscle strength testing was normal with muscle atrophy. There was no ankylosis of the ankle. Joint stability testing revealed laxity in the left ankle. Additionally, the examiner found there was no evidence of pain on passive ROM testing or with non-weight bearing. Finally, the examiner concluded that the Veteran's left ankle disability would preclude him from working where he would be on ladders or walking on uneven ground a lot. During a June 2020 Ankle Back Conditions DBQ, the Veteran reported flare-ups of mild to moderate pain lasting as long as he is on his feet. ROM testing for the left ankle revealed dorsiflexion from 0 to 10 degrees and plantar flexion from 0 to 30 degrees. Pain was noted on examination but did not caused functional loss. There was no objective evidence of crepitus. The Veteran was able to perform repetitive testing that did not reveal additional loss of function or range of motion. The examiner indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time or during a flare-up. Muscle strength testing was normal with muscle atrophy. There was no ankylosis of the ankle. On joint stability testing, no ankle instability or dislocation was suspected. Additionally, the examiner found no shin splints, stress fracture of the lower leg, achilles tendonitis, malunion of calcaneus, or talectomy. There was no evidence of pain on passive ROM testing or with non-weight bearing of the left ankle. Based on the foregoing evidence, the Board finds that the Veteran is not entitled to a disability rating in excess of the current 10 percent for the left ankle disability. The evidence does not demonstrate that the Veteran's left ankle disability results in marked limitation of motion. The Board considered the Veteran's reports of symptoms and that there was functional loss due to pain, interference with walking, and pain during flare-ups, and pain. However, the degree of any additional limitation reflected by the statements that he had difficulty walking for long time and had difficulty climbing ladders and on uneven surfaces, would not result in symptoms more nearly approximating marked limited motion of the ankle. Specifically, the VA examinations show that the Veteran's left ankle dorsiflexion has never been limited to less than 5 degrees, nor has his left ankle plantar flexion been limited to less than 10 degrees. The range of motion loss does not meet the criteria for marked limited motion. Thus, a rating in excess of 10 percent is not warranted under the schedular criteria or after consideration of DeLuca. See 38 C.F.R. § 4.71a, Diagnostic Code 5271; DeLuca, 8 Vet. App. at 202. (Continued on the next page) The Board has considered whether any other diagnostic codes related to disabilities of the ankle would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different diagnostic code. See 38 C.F.R. § 4.71a. There is no evidence suggesting the Veteran has had ankylosis of the left ankle, ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragalectomy. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for left ankle strain with DJD. As the preponderance of the evidence is against the claims for higher disability ratings, there is no doubt to be resolved, and ratings greater than those currently assigned for the Veteran's service-connected disabilities are not warranted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. J. In, 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.