Citation Nr: 21077388 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 18-14 387 DATE: December 29, 2021 ORDER Entitlement to a rating in excess of 40 percent for intervertebral disc syndrome (IVDS) with chronic low back strain is denied. FINDING OF FACT At no time has the Veteran's service-connected IVDS been manifested by incapacitating episodes having a total duration of at least six weeks during a one-year period; and at no time as the Veteran's spine been manifested by ankylosis. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for lumbar spine IVDS have not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1989 to March 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a Board hearing before the undersigned Veterans Law Judge in April 2021. A transcript of the hearing is in the Veteran's file. Entitlement to a rating in excess of 40 percent for intervertebral disc syndrome with chronic low back strain The Veteran was originally awarded service connection for his lumbar spine disability in August 2011. He filed this increased rating claim in July 2016. His lumbar spine disability was decreased from 40 percent to 10 percent disabling. The September 2021 Board decision restored the 40 percent disability rating as sustained improvement was not demonstrated, and remanded the issue of entitlement to a rating in excess of 40 percent for additional development. The Veteran contends his disability should be rated higher than 40 percent. The Veteran's lumbar spine disability is currently rated under 38 C.F.R. § 4.71a, DC 5243, for IVDS. DC 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this case, the new rating criteria do not involve changes to the specific rating criteria within either the general rating formula or the Formula for Rating IVDS based on incapacitating episodes. However, under the old criteria, Note 6 of the general rating formula directs evaluation of DC 5242 to also see DC 5003. The new rating criteria direct ratings under DC 5242 to see either DC 5003 or 5010. DC 5003 provides that degenerative arthritis established by x-ray findings be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. DC 5010 provides that arthritis, due to trauma, substantiated by X-ray findings, be rated as arthritis, degenerative. 38 C.F.R. § 4.71a. The only change made to DC 5003 in the new regulation is to clarify it as pertaining to degenerative arthritis, other than post-traumatic. The new DC 5010 indicates post-traumatic arthritis is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint, and, if there are two or more joints affected, each rating shall be combined in accordance with § 4.25. The only other change to the regulations pertaining to rating the spine involved DC 5244, traumatic paralysis, which is not applicable in this case. Under the general rating formula, a 20 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine is 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 in height. A 40 percent rating is warranted where forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. The only higher schedular ratings under the general rating formula are 50 percent for unfavorable ankylosis of the entire thoracolumbar spine and 100 percent for ankylosis of the entire spine. In addition, under the formula for rating IVDS based on incapacitating episodes a 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks in the past 12 months; a 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note 1 to the Formula for Rating IVDS based on incapacitating episodes defines an incapacitating episode as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. The current version of DC 5243 for IVDS instructs adjudicators to assign that DC only when there is disc herniation with compression and/or irritation of the adjacent nerve root, and to assign DC 5242 for all other disc diagnoses. The former version provides no such instruction. The Veteran was afforded a VA examination in September 2016. He was diagnosed with degenerative arthritis of the spine and IVDS. The Veteran reported that he had chronic back pain radiating to his left leg and has had increased pain over the past 18 months. He reported flare-ups with increased pain and noted he has to lie down. At the time of this examination, forward flexion was limited to 80 degrees; extension was to 20 degrees; right lateral flexion was to 20 degrees; left lateral flexion, right lateral rotation and left lateral rotation were all limited to 25 degrees. Pain was noted as present with forward flexion and extension, and with weight bearing. There was no evidence of localized tenderness or pain on palpitation of the joints or soft tissue of the back. Repetitive range of motion testing did not change the range of motion or cause pain or weakness. The examiner also noted that pain, weakness, fatigability, or incoordination significantly limited the Veteran's functional ability with repeated use over time and with flare-ups, but it could not be described in terms of range of motion as the examiner noted that the factors causing functional loss are based on the Veteran's statements and designating a numerical range of motion would be inherently speculative. Guarding, muscle spasms, or ankylosis were not found. In regard to IVDS, the examiner found that the Veteran had not had 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. Imaging tests documented the presence of arthritis. The RO then issued the September 2016 rating decision on appeal, which reduced the percent rating assigned for the lumbar spine IVDS from 40 percent to 10 percent. The Veteran's October 2016 NOD shows his desire for a rating in excess of 40 percent. At the time of the April 2021 hearing, the Veteran reported his back condition was continually getting worse. He reported that he needs help getting up and is unable to get off the floor. Following the hearing, in September 2021, the Board restored the 40 percent rating and remanded this matter in order for the Veteran to be afforded an updated VA examination. The Veteran was then afforded a VA examination in October 2021. He reported that his back pain continued to get worse with pain and he has days that he is "down and out" approximately 4 to 5 times a year, but he has not sought treatment for these episodes. He avoids bending or lifting so as to avoid causing more pain or having his back give out. In the mornings, it takes him several minutes to get up because of his back pain. He indicated that he visits a chiropractor, uses ibuprofen, ice, and heat to treat his back pain. The Veteran did not report any flare-ups of his lumbar spine. Range of motion of the thoracolumbar spine was as follows: flexion to 70 degrees, extension to 20 degrees, and right lateral flexion and rotation were to 30 degrees and left lateral flexion and rotation were to 20 degrees. Passive range of motion testing was performed but range of motion was the same as active testing. There was no evidence of pain, including in weightbearing, non-weightbearing, active and passive motion. There was no objective evidence of crepitus, or localized tenderness or pain on palpitation. Observed repetitive testing did not yield weakness, excessive fatigability, incoordination, or additional loss of motion. The Veteran was not examined immediately after repeated use over time, but the examiner found that statements from the Veteran suggest pain and lack of endurance caused functional loss. The range of motion was estimated to be limited with forward flexion to 65 degrees, extension to 15 degrees, right lateral flexion, and rotation to 25 degrees and left lateral flexion and rotation to 15 degrees. The Veteran was not examined during a flare-up. The examiner found that pain, fatigability, weakness, lack of endurance, or incoordination would not significantly limit functional ability with flare-ups. The examiner did not provide an estimated range of motion during flare-ups as the Veteran denied having flare-ups. There was no guarding or localized tenderness or ankylosis. Straight leg raising was negative on the right and positive on the left. Muscle spasms were present but did not result in abnormal gait or spinal contour. The examiner confirmed that the Veteran's IVDS but noted it was not manifested by episodes of bed rest. The Veteran did not report using any assistive devices. The Board has considered the effects of repeated use over time and flare-ups along with the adequacy of the VA examinations in light of the Court's holdings in Correia and Sharp. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Correia decision provides that VA orthopedic examinations should include testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing. Additionally, the Sharp holding outlines VA examiners' obligation to elicit information regarding flare-ups of a musculoskeletal disability if the examination is not conducted during such a flare-up, and to use this information to characterize additional functional loss during flare-ups. The Board notes that the spine is not a paired joint and there is no paired joint to test. Regarding repeated use over time, the Board notes that the October 2021 VA examinations conducted repetitive-use testing and provided additional functional loss of range of motion occurring after three repetitions. Therefore, the Board finds that the VA examinations are compliant with Correia v. McDonald, above, and the Board places great probative emphasis on the range of motion findings therein, which in turn do not support assignment of a higher rating. Additionally, the examiner elicited information from the Veteran regarding flare-ups, but the Veteran denied flare-ups at the October 2021 examination. Therefore, the examinations of record are adequate for VA purposes. Based upon the foregoing, the Board finds a rating in excess of 40 percent is not warranted. There is no evidence that the Veteran's lumbar spine is manifested by ankylosis. The September 2016 and October 2021 VA examinations explicitly found that there was no ankylosis on examination. Thus, a rating in excess of 40 percent under the General Rating Formula for Diseases and Injuries of the Spine is not warranted. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Both the September 2016 and October 2021 VA examiners stated that the Veteran does not have incapacitating episodes requiring bed rest. VA and private treatment records also do not reflect that the Veteran was prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. Regarding neurological impairment, the Veteran has already been granted service connection for left lower extremity radiculopathy, and the lay and medical evidence of record is against a finding that the Veteran had any other neurological abnormality associated with his spine disability. To the extent the claim for a rating in excess of 40 percent is denied, the Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim in this regard, so that doctrine is not applicable. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jaigirdar, 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.