Citation Nr: 21077085 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 17-20 545 DATE: December 28, 2021 ORDER Entitlement to a 40 percent rating, but no higher, for spondylosis of thoracic spine with degenerative disease of the lumbosacral spine and intervertebral disc syndrome (back disability) for the appeal period from October 8, 2015 to June 12, 2016 is granted. Entitlement to a rating higher than 40 percent for back disability from October 8, 2015 to February 9, 2020, and from April 1, 2020 is denied. Entitlement to a rating higher than 30 percent for cervical spine degenerative disc disease (neck disability) for the appeal period from October 8, 2015 to July 24, 2019 and from September 1, 2019 to November 16, 2020 is denied. [The applicable diagnostic code (DC) has been changed to 5243]. Entitlement to a 40 percent rating, but no higher, for neck disability for the appeal period from November 17, 2020 is granted. [The applicable DC has been changed to 5243]. FINDINGS OF FACTS 1. The severity of the Veteran's back disability is manifested by forward flexion less than 30 degrees throughout the appeal period. 2. The Veteran's back disability is not manifested by unfavorable ankylosis of the entire thoracolumbar spine. 3. The Veteran's neck disability is not manifested by unfavorable ankylosis of the entire cervical spine. 4. As of November 17, 2020, the Veteran's cervical Intervertebral Disc Syndrome (IVDS) requires bed rest having a total duration of at least 4 weeks but less than 6 weeks. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating for back disability, for the appeal period from October 8, 2015 to June 12, 2016, have been satisfied. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5243. 2. The criteria for a rating in excess of 40 percent for back disability, for the appeal period from October 8, 2015 to February 9, 2020, and from April 1, 2020, have not been satisfied. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5243. 3. The criteria for a rating in excess of 30 percent for neck disability, for the appeal period from October 8, 2015 to July 24, 2019 and from September 1, 2019 to November 16, 2020, have not been satisfied. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5243. 4. The criteria for a 40 percent rating, but no higher, for neck disability, for the appeal period from November 17, 2020, are satisfied. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1981 to August 1992. The claims come to the Board of Veterans' Appeals (Board) from two rating decisions from February 2016. The Veteran filed a notice of disagreement (NOD) in March 2016, which resulted in an April 2017 statement of the case (SOC). The Veteran subsequently filed a substantive appeal in April 2017. The claims were before the Board in September 2020 and remanded for further development. Notably, the Veteran's back disability was rated 100 percent disabling for the appeal period from February 10, 2020 to March 31, 2020. Similarly, his neck disability was rated 100 percent for the appeal period from February 27, 2015 to April 30, 2015, and from July 25, 2019 to August 31, 2019. These appeal periods are not currently on appeal because the Veteran's disabilities were assigned the maximum rating possible. While the claim for increased rating for back disability was pending, the agency of original jurisdiction (AOJ) increased the rating to 40 percent effective June 13, 2016, by way of a January 2017 rating decision. Notwithstanding, the issue of increased rating for back disability for this appeal period remains on appeal as the maximum rating possible has not been granted. Ab v. Brown, 6 Vet. App. 35 (1993). Increased Rating The Veteran contends that higher ratings for his back and neck disabilities are warranted. The VA's Schedule for Rating Disabilities is used to determine disability ratings once a disability is service-connected. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In the Rating Schedule, DCs are assigned to specific disabilities. These DCs designate percentage ratings based on the average functional impairment of the Veteran due to a service-connected disability. 38 C.F.R. §§ 3.321, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) did not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The guidance provided by DeLuca must be followed in adjudicating claims where a rating under the DCs governing limitation of motion should be considered. However, pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain alone does not constitute function loss but is just one fact to be considered when evaluating functional impairment). Notably, both the Veteran's back and neck disabilities are rated under the General Rating Formula for Disease and Injuries of the Spine. 38 C.F.R. § 4.71A. The Board recognizes that any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate DC pursuant to Note (1) of the General Rating Formula. In this case, the Veteran has already been granted service connection for radiculopathy of the bilateral upper and lower extremities. The lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormalities associated with his spine disabilities. 1. Entitlement to a 40 percent rating, but no higher, for back disability for the appeal period from October 8, 2015 to June 12, 2016 is granted. 2. Entitlement to a rating higher than 40 percent for back disability from October 8, 2015 to February 9, 2020, and from April 1, 2020 is denied. The Veteran's back disability is rated under DC 5243, which is part of the General Rating Formula for Disease and Injuries of the Spine. Under the General Rating Formula, a 40 percent rating is assigned, if forward flexion is limited to 30 degrees or less; or favorable ankylosis of the entire lumbar spine is present. Where there is unfavorable ankylosis of the entire thoracolumbar spine, a 50 percent rating is assigned. Finally, a maximum 100 percent rating is assigned where there is unfavorable ankylosis of the entire spine. Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Note (5) of the General Rating Formula states that, for VA compensation purposes, unfavorable ankylosis is a condition in which the thoracolumbar 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 of 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 a neutral position (zero degrees) always represents favorable ankylosis. DC 5243 also allows rating based on incapacitating episodes if it would result in higher evaluation. 38 C.F.R. § 4.71, DC 5243. Incapacitating episodes are defined as periods of acute signs and symptoms due to IVDS that require bed rest prescribed by a physician. Under DC 5243, a maximum 60 percent rating is assigned if the incapacitating episodes last 6 weeks during the last twelve months. 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). In this case, the Veteran's back disability is rated as 20 percent disabling from October 8, 2015 to June 12, 2016, and 40 percent from June 13, 2016 to February 9, 2020, as well as from April 1, 2020. However, the Board finds that staged rating is not warranted. Rather, reviewing the evidence of record in light most favorable to the Veteran and affording him the benefit of the doubt, the Board finds that a 40 percent rating, but no higher, is warranted throughout the entire appeal period. To that end, the Veteran underwent a VA examination in June 2016, where he reported that his back pain limits his ability to lift, carry, push, stand, and sit. His initial range of motion testing found that he had forward flexion limited to 10 degrees that remained the same after repetitive use testing. The examiner noted that pain, fatigue, weakness and lack of endurance causes functional loss after repetitive use over time. The Veteran did not report flare-ups. Based on this examination, the Veteran's range of flexion was less than 30 degrees, which is consistent with a 40 percent rating. Moreover, the examination report reflects that the Veteran has IVDS that requires bed rest having a total duration of at least 1 week, but less than 2 weeks during the 12 months prior to the exam. Thus, the June 2016 examination does not reflect a disability picture that warrants a rating higher than 40 percent based on incapacitating episodes. The June 2016 VA examination is the only competent medical evidence of record that provided a complete picture of the severity of the Veteran's back disability since he filed his claim in October 2015. It is not factually ascertainable that his back disability was less severe prior to this examination. Under these circumstances, the Board concludes that based on the June 2016 VA examination, the Veteran had forward flexion limited to 30 degrees or less, and thereby has a level of impairment contemplated by a 40 percent disability rating since he filed the claim in October 2015. However, the evidence does not show unfavorable ankylosis of the entire thoracolumbar spine to warrant a higher 50 percent rating. Specifically, the June 2016 and November 2020 examination reports document that ankylosis of the spine was absent. The November 2020 examination found that the Veteran had an initial range of flexion that was limited to 25 degrees, which was reduced to 15 degrees after repetitive use testing. The examiner reported that he has flare-ups 4-5 times a week, which is manifested by severe pain that the examiner described as debilitating at times. The examiner estimated that his range of flexion would be 15 degrees during flare-ups. The examiner also indicated pain, fatigue, weakness, and lack of endurance will likely reduce his range of flexion to 10 degrees after repetitive use over time. Moreover, the examination reflects that the Veteran's IVDS did not require bed rest during the 12 months prior to the exam. Accordingly, a rating higher than 40 percent based on the Veteran's range of motion or incapacitating episode is not warranted. In sum, based on the June 2016 and November 2020 examinations, while the Veteran has significant limitation of range of motion of the spine, such limitation is fully contemplated by the 40 percent rating assigned. Furthermore, the range of motion the Veteran had during the exams of record, while limited, demonstrates that he can move and that he does not have stiffening or fixation of the spine. The Board has considered whether the requirement of ankylosis can be met with evidence of the functional equivalent of ankylosis (i.e., functional immobility of the joint). Chavis v. McDonough, 34 Vet. App. 1 (2021). The Veteran reports that his back can be debilitating at times. See November 2020 VA examination. The June 2016 VA examiner indicated that he is unable to lift more than 10 lbs, walk more than half a block, sit longer than 20 minutes, and stand longer than 30 minutes. Thus, the Veteran unequivocally has severe functional impairment and restriction of range of motion. However, such restriction of range of motion is fully considered by the 40 percent disability rating assigned. The evidence does not reflect a level of impairment that approximates functional immobility of the joint that is equivalent to ankylosis, as the Veteran is still able to move. The Board finds that the requirement of unfavorable ankylosis of the entire thoracolumbar cannot be met with evidence of the functional equivalent of ankylosis in this particular case. The Board has considered the functional impairments the Veteran experiences due to his back disability. The Veteran is competent to report the symptoms of pain that significantly limit mobility, prolonged sitting, and running. See March 2016 NOD. The Board is sympathetic to the fact that the Veteran was unable to maintain physical fitness to continue his career as a Deputy Sherriff. See April 2017 substantive appeal. However, the Board is bound by the law and regulations, and as previously stated, rating higher than 40 percent requires the presence of unfavorable ankylosis of the entire thoracolumbar spine. Here, while he has significant functional limitations, it is clear from the Veteran's own statements, that his back disability does not result in functional immobility of the spine. The 40 percent disability assigned contemplates the functional loss that the Veteran describes. In sum, the Board finds that throughout the appeal period the criteria for a rating of 40 percent, but no higher have been met. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran's claim for rating higher than 40 percent, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to a rating higher than 30 percent for neck disability for the appeal period from October 8, 2015 to July 24, 2019 and from September 1, 2019 to November 16, 2020 is denied. 4. Entitlement to a 40 percent rating, but no higher, for neck disability for the appeal period from November 17, 2020 is granted. The Veteran's neck disability is currently rated as 30 percent under DC 5242, which is part of the general rating formula for diseases and injuries of the spine (general rating formula). However, where the evidence reflects the presence of IVDS, as in this case, DC 5243 is applicable. Under DC 5243, the Board may consider rating the disability either under the general rating formula (based on range of motion) or based on periods of incapacitating episodes, whichever method results in higher evaluation. The Board has considered the implications of changing DCs. The assignment of a particular DC is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as the Veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology. Any change in DC by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The change in the applicable DC, in this case, is made in order to assign the highest possible rating for the Veteran's service-connected disability, as explained below. Under the general rating formula, a 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A maximum 100 percent rating is assigned where there is unfavorable ankylosis of the entire spine. Note (5) of the General Rating Formula states that, for VA compensation purposes, unfavorable ankylosis is a condition in which the cervical 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 of 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 a neutral position (zero degrees) always represents favorable ankylosis. In addition, a 40 percent rating is assigned if IVDS is manifested by incapacitating episodes having a total duration of 4 weeks but less than 6 weeks during the past 12 months. A maximum 60 percent rating is assigned if the incapacitating episodes last 6 weeks during the last twelve months. Here, a higher 40 percent rating is not appropriate based on range of motion of the cervical spine because the medical evidence does not show that the Veteran has unfavorable ankylosis. To the contrary, the June 2016 and November 2020 VA examinations showed that the Veteran did not have ankylosis of the cervical spine. Because of his neck disability, the Veteran has difficulty looking upward, looking to the side, looking over his shoulders, lifting, carrying objects or handwriting. See June 2016 & November 2020 VA examinations. Thus, the Board has considered whether his disability results in functional equivalent of ankylosis. Chavis, 34 Vet. App. 1. However, both the June 2016 and November 2020 VA examinations reflect that, while severely restricted, the Veteran is still able to move his neck. For instance, during the June 2016 VA examination, the Veteran had an initial 10 degrees range of flexion, which remained unchanged after repetitive use testing. Similarly, the Veteran had a 20 degrees range of flexion during the November 2020 VA examination, which reduced to 10 degrees after repetitive use testing due to pain, fatigue, weakness, and lack of endurance. The Veteran endorsed flare-ups that occur two to three times a week, which the examiner predicted would result in forward flexion limited to 5 degrees. The examiner also estimated that 5 degrees was likely the Veteran's range of flexion after repeated use over time. In sum, even considering additional functional loss during flare-ups and repetitive use over time, the competent medical evidence of record reflects that the Veteran has range of motion, which entails that he does not have functional immobility of the cervical spine. Thus, the evidence does not reflect unfavorable ankylosis of the entire cervical spine or functional immobility of the joint to warrant a 40 percent rating based on the Veteran's limited range of motion. However, the medical evidence of record reflects that a 40 percent rating is warranted, effective November 17, 2020, for the Veteran's neck disability under DC 5243. As noted above, DC 5243 is applicable if there is evidence showing IVDS. In this case, the June 2016 and November 2020 VA examinations of record reflect that the Veteran has IVDS of the cervical spine. The June 2016 VA examination reflected that the Veteran IVDS was manifested by incapacitating episodes that lasted 2 weeks but less than 4 weeks during the 12 months prior to the exam, which is consistent with a 20 percent disability rating under DC 5243. The November 17, 2020 examination found that the Veteran had incapacitating episodes that last 4 weeks but less than 6 weeks in the 12 months prior to the exam. This examination is the first time that the severity of the Veteran's IVDS was shown to be consistent with a 40 percent disability rating under DC 5243. Thus, the evidence supports a 40 percent rating based on incapacitating episodes due to IVDS of the cervical spine effective November 17, 2020. However, the evidence does not show that the Veteran's cervical IVDS requires bed rest having a total duration of at least 6 weeks at any point throughout the appeal period. As such, a rating higher than 40 percent is not warranted under DC 5243. In sum, the Board finds that the criteria for a rating higher than 30 percent for the appeal period from October 8, 2015 to July 24, 2019 and from September 1, 2019 to November 16, 2020 for the Veteran's neck disability have not been met. However, a rating of 40 percent, but no higher, is warranted effective November 17, 2020. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Solomon 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.