Citation Nr: 21077430 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 12-31 593 DATE: December 29, 2021 ORDER Entitlement to an initial disability rating in excess of 40 percent for degenerative disc disease lumbar spine w/partial compression injury (back disability) is denied. REMANDED Entitlement to a higher initial disability rating for service connected lumbar radiculopathy, sciatic nerve, left lower extremity, currently evaluated as 20 percent disabling effective July 12, 2021 is remanded. FINDING OF FACT The Veteran's back disability is manifested by a forward flexion of 30 degrees or less; his back disability has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine or entire spine or the functional equivalent thereof, or incapacitating episodes due to intervertebral disc syndrome having a total duration of at least 6 weeks during the past twelve months. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for a back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1975 to July 1998. These matters come to the Board of Veterans' Appeals (Board) following a January 2020 Board decision and September 2015, August 2017, and June 2021 Board Remands. This matter was originally on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in June 2015. In a September 2021 rating decision, the RO granted an increased rating of 40 percent for the Veteran's back disability, effective October 30, 2009. Increased Rating Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board has considered the entire record, including the Veteran's VA clinical records and private treatment records. These show complaints and treatment but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disabilities. 1. Entitlement to an initial disability rating in excess of 40 percent for degenerative disc disease lumbar spine w/partial compression injury (back disability) The Veteran's disability is rated under Diagnostic Code (DC) 5010-5242. The rating criteria for this code is contained within the General Rating Formula for Diseases and Injuries of the Spine. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. 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. Under both the former and amended criteria for Diagnostic Code 5237, a 40 percent rating is assigned for evidence of forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. A 50 percent rating is assigned for evidence of unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is assigned for evidence of unfavorable ankylosis of the entire spine. Id. 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. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). 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. Normal thoracolumbar spine motion includes forward flexion from 0 to 90 degrees and normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Plate V. 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."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). An April 2010 rating decision granted service connection for the Veteran's back disability with an evaluation of 20 percent, effective October 30, 2009. The Veteran's May 2011 statement contends that there is minimal forward movement that does not increase the pain significantly. In his November 2012 Form 9, the Veteran stated that his range of motion drastically decreased. At his June 2015 hearing, the Veteran asserted that he experiences muscle spasms less frequent than once a week, lasting a couple of days to sometimes a week. In February 2010 the Veteran was afforded a VA examination, the examiner reported that muscle spasms produced an abnormal gait, no atrophy was present in the limbs, and there was no ankylosis of the thoracolumbar spine. Active range of motion testing was as follows: forward flexion (normal 0 90 degrees) was to 64 degrees, extension (normal 0 30 degrees) was to 15 degrees, right lateral flexion (normal 0 30 degrees) was to 22 degrees, left lateral flexion (normal 0 30 degrees) was to 25 degrees, right lateral rotation (normal 0 30 degrees) was to 24 degrees, and left lateral rotation (normal 0 30 degrees) was to 18 degrees. The entire range of motion of the thoracolumbar spine (normal 240 degrees) was 168 degrees. At the Veteran's June 2015 hearing he stated that he did not believe the June 2010 examination depicted the fatigue and loss of mobility that he experienced due to his back condition. In a September 2015 Board Remand, the AOJ was directed to schedule the Veteran for a new VA examination to determine the severity of his lumbar spine disabilities. In October 2015 the Veteran was afforded a new VA examination, the examiner reported that the Veteran had degenerative arthritis of the spine and IVDS. The October 2015 VA examination report shows that the Veteran reported flare ups of the thoracolumbar spine, and pain when bending. Active range of motion testing was as follows: forward flexion (normal 0 90 degrees) was to 50 degrees, extension (normal 0 30 degrees) was to 10 degrees, right lateral flexion (normal 0 30 degrees) was to 12 degrees, left lateral flexion (normal 0 30 degrees) was to 13 degrees, right lateral rotation (normal 0 30 degrees) was to 21 degrees, and left lateral rotation (normal 0 30 degrees) was to 20 degrees. The entire range of motion of the thoracolumbar spine (normal 240 degrees) was 126 degrees, with pain exhibited on all ranges of motion. The examiner reported that there was no pain with weight bearing, and that further testing was stopped due to pain. In addition, the examiner reported that the Veteran did not have guarding or muscle spasm, muscle atrophy, radiculopathy, or ankylosis. The examiner reported that the Veteran's IVDS did not result in any episodes of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The examiner noted that the Veteran's lumbar disability impacted his ability to work by causing difficulty bending and lifting. In July 2019, the Veteran was afforded a new VA examination. In addition to degenerative arthritis of the spine and IVDS, the examiner noted the Veteran had a spinal fusion procedure. The July 2019 examination shows the Veteran did not report flare ups of the thoracolumbar spine but reported functional loss or functional impairment as a limitation of motion. Active range of motion testing was as follows: forward flexion (normal 0 90 degrees) was to 50 degrees, extension (normal 0 30 degrees) was to 30 degrees, right lateral flexion (normal 0 30 degrees) was to 30 degrees, left lateral flexion (normal 0 30 degrees) was to 30 degrees, right lateral rotation (normal 0 30 degrees) was to 30 degrees, and left lateral rotation (normal 0 30 degrees) was to 30 degrees. The entire range of motion of the thoracolumbar spine (normal 240 degrees) was 200 degrees. The examiner reported that pain was exhibited at right lateral rotation and left lateral rotation but did not result in functional loss. The examiner reported there was no evidence of pain with weight bearing, and no additional loss of function or range of motion with repetition. Further, the examiner reported that the Veteran did not have guarding or muscle spasms, muscle atrophy, radiculopathy, or ankylosis. The examiner reported that the Veteran's IVDS did not result in any episodes of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The examiner reported there was no objective evidence of pain in nonweight bearing position. Additionally, the examiner reported range of motion for the thoracolumbar spine in active and passive motion, weight-bearing and nonweight-bearing are the same, and there would be no additional functional impairment due to flare-ups because the Veteran denied flare-ups. In February 2021, CAVC granted the parties' Joint Motion for Remand (JMR) to vacate and remand the January 2020 Board decision finding that the July 2019 VA examination contained inconsistent findings and the prior VA examinations were inadequate for rating purposes. Specifically, the parties stated despite the notation of flare-ups in the February 2010 VA examination, the examiner did not opine on whether there was additional functional limitation during flare-ups or attempt to describe the impact of the Veteran's flare-ups in terms of lost range of motion. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (citing Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). In addition, the parties stated that the October 2015 VA examination did not address the severity of the Veteran's back disability prior to the October 2015 VA examination, to include the impact of flare-ups at the time of the 2010 examination. Also, the October 2015 VA examination failed to provide all the requisite range of motion measurements. See Correia v. McDonald, 28 Vet. App. 158, 168-70 (2016). The parties also identified inconsistent findings in the July 2019 examiner's report. The June 2021 Board remand directed the AOJ to afford the Veteran a new VA examination that complies with Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). In July 2021 the Veteran was afforded a new VA examination. The examiner reported the Veteran's flare ups occur every couple of weeks. The examiner noted the Veteran's back flare-ups are moderate to severe and last one to two days, to a week or more. The Veteran stated he has never experienced events causing flare ups, "they just come on." The examiner noted the back flare-ups are alleviated by rest, medications in case needed, sometimes resorting to narcotics. The Veteran reported functional impairment as stiffness and left leg numbness. Range of motion testing showed forward flexion ending at 10 degrees, extension was at 0 degrees, right lateral flexion was at 5 degrees, left lateral flexion was at 5 degrees, right lateral rotation was at 5 degrees and left lateral rotation was at 0 degrees. Pain was exhibited on all ranges of motion. The examiner indicated the Veteran's range of motion during flares to be 0 degrees during all ranges of motion. The examiner noted pain on weight-bearing, nonweight-bearing with active and passive motion. The examiner indicated there was muscle spasm and guarding resulting in abnormal gait or abnormal spinal contour. The examiner noted the Veteran did not have ankylosis or IVDS. The Board finds that the evidence is against a rating in excess of 40 percent for a back disability. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain and stiffness. However, for the entire period on appeal, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements of flare-ups resulting in stiffness, and loss of locomotion would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine or the functional equivalent thereof. The Veteran does not have unfavorable ankylosis or the functional equivalent of unfavorable ankylosis. In addition to severe limitation of motion of the lumbar spine, a 40 percent rating is also assigned for favorable ankylosis. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Thus, the 40 percent rating contemplates episodes in which the Veteran believes his disability is so severe that he cannot move his back. As noted above, unfavorable ankylosis is 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 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). The Board does not find that the medical evidence and the Veteran's description of the functional impairment he experiences demonstrates the level of disability associated with unfavorable ankylosis of the thoracolumbar spine or functional equivalent thereof, which is the criteria associated with the next higher rating of 50 percent. 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. The Board has considered the Veteran's lay complaints. The Veteran's lay evidence, however, is outweighed by the competent and credible medical evidence that evaluates the true extent of the impairment based on objective data coupled with the lay complaints. In this regard, the Board notes that the medical examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints, and to provide the requisite information for an evaluation of the disability under the rating schedule. For these reasons, greater evidentiary weight is placed on the medical findings in regard to the type and degree of the Veteran's impairment. Accordingly, an increased rating is not warranted. REASONS FOR REMAND 1. Entitlement to a higher initial disability rating for service connected lumbar radiculopathy, sciatic nerve, left lower extremity, currently evaluated as 20 percent disabling effective July 12, 2021 is remanded. In a September 2021 rating decision, the RO also granted service connection for lumbar radiculopathy, sciatic nerve, left lower extremity with an evaluation of 20 percent, effective July 12, 2021. The Veteran has not expressed disagreement with any aspect of the award of service connection for the radiculopathy, the issue was not carried forward in the September 2021 supplemental statement of the case, and no prior Board Remand mentioned this issue. Nevertheless, the Board is cognizant of Chavis v. McDonough, 34 Vet. App. 1 (2021), which failed to provide any clarity on this issue. Chavis at FN 17 ("We leave for another day the question whether issues of higher evaluations for radiculopathy are always part of claims seeking higher evaluations for the underlying spine disability."). The matters are REMANDED for the following action: Obtain a retrospective medical opinion regarding the severity of the Veteran's service-connected lumbar radiculopathy, sciatic nerve, left lower extremity. In particular, the examiner should review the February 2010, October 2015, and July 2019 VA examination reports of record as well as the current July 2021 VA examination report together with all other evidence and determine whether there was any evidence of radiculopathy of the left leg, and if so, the severity (mild, moderate, moderately severe, or severe) for the period from October 30, 2009 to July 11, 2021. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Daley, 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.