Citation Nr: 21076668 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 15-33 141 DATE: December 27, 2021 ORDER Entitlement to a disability rating greater than 10 percent prior to November 5, 2019, and greater than 20 percent thereafter, for right sacroiliac joint dysfunction is denied. Entitlement to a disability rating greater than 30 percent for status post hysterectomy and lysis for polycystic ovaries and pelvic adhesive disease is dismissed. FINDINGS OF FACT 1. The record evidence shows that, prior to November 5, 2019, the service-connected right sacroiliac joint dysfunction is manifested by normal flexion, a combined thoracolumbar spine range of motion (ROM) which does not exceed 235 degrees and painful motion. 2. The record evidence shows that, effective November 5, 2019, the service-connected right sacroiliac joint dysfunction is manifested by, at worst, flexion limited to 45 degrees with painful motion. 3. On June 21, 2021, prior to the promulgation of a decision in the appeal, the Board received written notification from the Veteran indicating that she wanted to withdraw the issue of entitlement to a disability rating greater than 30 percent for status post hysterectomy and lysis for polycystic ovaries and pelvic adhesive disease. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 10 percent prior to November 5, 2019, and greater than 20 percent thereafter, for right sacroiliac joint dysfunction have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code (DC) 5236 (2020). 2. The criteria for withdrawal of the claim of entitlement to a disability rating greater than 30 percent for status post hysterectomy and lysis for polycystic ovaries and pelvic adhesive disease have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1987 to August 2000. She also had additional prior inactive service. This appeal has a long procedural history. It comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in January 2012 by a Department of Veterans Affairs (VA) Regional Office (RO). This case was before the Board previously in August 2018 when it was remanded to the RO for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In an October 2020 rating decision, the RO assigned a higher 20 percent rating effective November 5, 2019, for the service-connected right sacroiliac joint dysfunction. Having reviewed the record evidence, the Board finds that the issues on appeal should be characterized as stated above. The Board notes that effective February 7, 2021, the rating criteria pertaining to musculoskeletal disabilities were revised. See 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). The rating criteria used to evaluate the Veteran's disability under Diagnostic Code 5236 were not changed substantially. Entitlement to an increased rating for right sacroiliac joint dysfunction The Veteran asserts that she is entitled to a higher rating for her right sacroiliac joint dysfunction because the severity of her symptoms is worse than contemplated by the currently assigned ratings. The record evidence shows that, at an August 2010 VA examination, she reported limitation in walking because of her lumbar spine disability. She stated that on average, she can walk 1 mile in 20 minutes. She noted that she has not experienced falls due to her spine condition. She also reported the following symptoms associated with her spinal condition: stiffness spasms decreased motion, paresthesia, weakness of the leg and foot, and numbness. She did not experience fatigue. She did not report having any bowel or bladder problems. She reported experiencing constant, severe pain, located on the right back and distally. The pain can be exacerbated by physical activity. It is relieved by a muscle relaxant. At the time of pain, she experienced limited function. She reported flare-ups where she experiences functional impairment that was described as limited range of motion (ROM) and lifting. She was never hospitalized or had any surgery for her lumbar spine disability. She noted that her condition, in the past 12 months had not resulted in any incapacitation. Additionally, there has been no infection of the lumbar spine. On physical examination in August 2010, lumbar spine range of motion (ROM) was flexion to 90 degrees, extension to 10 degrees, right and left lateral flexion to 30 degrees in each direction, and right and left lateral rotation to 10 degrees in each direction. Pain was noted on flexion, extension, and right and left lateral rotation. The examiner noted that the examination revealed evidence of radiating pain on movement. Muscle spasms were present but did not produce an abnormal gait. Tenderness was noted on examination. Spinal contour was preserved though there was tenderness. There was guarding of movement but it did not produce an abnormal gait. There was no weakness found on examination. Muscle tone was normal. Musculature was normal. Straight leg raising was negative on both sides. There was no atrophy present in the limbs. There was no ankylosis of the lumbar spine. The diagnosis was right sacroiliac joint dysfunction. At an August 2015 VA examination, the Veteran reported still having issues of stiffness, leg numbness, and pain. She had attempted physical therapy and had modified activities, used pain management, and used a cane for additional support. Sitting, standing, bending, stooping, sweeping, mopping, and vacuuming were painful even with medication. She reported daily flare-ups which require her to take medicine and if possible, stop, wait for a moment, then proceed. Upon physical examination, lumbar spine ROM measurements were all normal with pain on flexion, extension, right lateral flexion, and right lateral rotation. There was no localized tenderness or pain on palpation of the joint or associated soft tissue of the lumbar spine. She was able to perform repetitive use testing and there was no additional loss of function or ROM after three repetitions. Pain was found to significantly limit functional ability during flare-ups. There was no guarding or muscle spasm of the lumbar spine. Pain with activity, sitting, and standing were identified as additional factors contributing to disability. Muscle strength testing was normal and there was no muscle atrophy. Reflex and sensation were normal. Straight leg raising testing was positive on the right side and negative on the left side. She had mild radiculopathy on the right side. There was no ankylosis of the lumbar spine. She also had intervertebral disc syndrome (IVDS) of the lumbar spine but no episodes of acute signs and symptoms due to IVDS which required bed rest prescribed by a physician and treatment by a physician in the 12 months prior to the examination. She regularly used a cane as a normal mode of locomotion. At a November 2019 VA examination, the Veteran reported that her right buttocks pain is about the same. She reports constant right buttocks pain rated 8/10 that aggravated by sitting, standing, and walking for extended period of times. She reported that she cannot stand or walk for more than 5 minutes without moderate to severe pain. She stated that it is painful to rise from a seated position after sitting for more than 3 minutes. She cannot bend or squat without pain. It was very painful to bend to tie her shoes, dress herself, take a shower, or be intimate with her spouse. She cannot exercise or lift. She took Percocet 3 4 times a week, Oxycontin twice a day, Tizanidine in the morning, afternoon, and bedtime, Topiramate twice a day, and Docusate twice a day, as a result of her lumbar spine disability. She noted that her right sacroiliac joint dysfunction pain flares up once a month and the pain is so severe that she cannot sit straight on a chair. On physical examination in November 2019, lumbar spine ROM was flexion to 60 degrees, extension to 10 degrees, right and left lateral flexion to 15 degrees in each direction, and right and left lateral rotation to 15 degrees in each direction. Pain was noted on all endpoints of ROM. There was objective evidence of localized tenderness or pain on palpation of the right sacroiliac joint. She was able to perform repetitive use testing and there was no additional loss of function or ROM after three repetitions. Pain significantly limited functional ability with repeated use over a period of time and flare-ups. The estimated ROM of the Veteran's lumbar spine during those times was flexion to 50 degrees, extension to 5 degrees, right and left lateral flexion to 10 degrees in each directions, and right and left lateral rotation to 10 degrees in each direction. There was no guarding or muscle spasm of the lumbar spine. Disturbance of locomotion, interference with sitting, and interference with standing were identified as additional contributing factors of disability. Muscle strength testing was normal and there was no muscle atrophy. Reflexes were normal except for a hypoactive right ankle. Sensory examination was normal except for decreased sensation in the right foot. Straight leg raising testing was negative on both sides. She had moderate radiculopathy on the right side. There was no ankylosis of the lumbar spine. She did not have IVDS of the lumbar spine. She constantly used a cane as normal means of locomotion. A review of the record shows that the Veteran receives treatment for various disabilities at the VA Medical Center and with private treatment providers, to include her back disability. A review of the treatment records does not show that the Veteran has symptoms of her back disability that are worse than those reported in the various VA examination reports of record, to include limitation of motion or functional impairment during flare-ups or following repeated use over time. The Board finds that the Veteran is not entitled to a disability rating greater than 10 percent prior to November 5, 2019, for her service-connected right sacroiliac joint dysfunction. In this regard, there is no indication from the record that she had flexion limited to 60 degrees or less or a combined thoracolumbar spine ROM of 120 degrees or less. In fact, she had normal flexion and a combined thoracolumbar spine ROM that does not exceed 235 degrees. Additionally, the Board notes that VA examiners took into consideration additional limitation due to pain, fatigability, weakness, lack of endurance, or incoordination following repeated use over a period of time or during a flare-up. As such, there is no basis for assignment of a higher rating prior to November 5, 2019, even when considering all pertinent disability factors. 38 C.F.R. §§ 4.40, 4.45 (2020). She otherwise has not identified or submitted any evidence demonstrating her entitlement to an increased rating prior to November 5, 2019, for her service-connected right sacroiliac joint dysfunction. As such, the Board finds that the criteria for a disability rating greater than 10 percent prior to November 5, 2019, for right sacroiliac joint dysfunction have not been met. The Board next finds that the Veteran is not entitled to a disability rating greater than 20 percent effective November 5, 2019, for her service-connected right sacroiliac joint dysfunction. In this regard, there is no indication from the record that she had flexion limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine as is required for a disability rating greater than 20 percent under DC 5236. See 38 C.F.R. § 4.71a, DC 5236. In fact, the Veteran's lumbosacral spine flexion is limited to, at worst, 50 degrees. Additionally, VA examiners took into consideration additional limitation due to pain, fatigability, weakness, lack of endurance, or incoordination following repeated use over a period of time or during a flare-up. As such, there remains no basis for assignment of a higher rating from November 5, 2019, even when considering all pertinent disability factors. 38 C.F.R. §§ 4.40, 4.45 (2020). She otherwise has not identified or submitted any evidence demonstrating her entitlement to an increased rating effective November 5, 2019, for her service-connected right sacroiliac joint dysfunction. As such, the Board finds that the criteria for a disability rating greater than 20 percent effective November 5, 2019, for right sacroiliac joint dysfunction have not been met. Dismissed Claim The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the Appellant or by his or her authorized representative. Id. In the present case, the Appellant has withdrawn her appeal for a disability rating greater than 30 percent for status post hysterectomy and lysis for polycystic ovaries and pelvic adhesive disease; hence, there remain no allegations of errors of fact or law for appellate consideration with respect to this claim. Accordingly, the Board does not have jurisdiction to review this claim and it is dismissed. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Umez-Eronini, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.