Citation Nr: A21019097 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 200402-75672 DATE: December 1, 2021 ORDER Entitlement to a 10 percent rating, but no higher, for service-connected lumbosacral strain is granted. Entitlement to a 10 percent rating, but no higher, for service-connected left ankle lateral ligament laxity is granted. FINDINGS OF FACT 1. The Veteran's service-connected lumbosacral strain has been manifested by painful motion. 2. The Veteran's service-connected left ankle lateral ligament laxity disability has been manifested by painful motion. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 10 percent, but no higher, for service-connected lumbosacral strain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. 2. The criteria for a 10 percent rating, but no higher, for a service-connected left ankle lateral ligament laxity disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.59, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from September 1989 to December 2014. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2019 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed claims seeking increased ratings for his service-connected disabilities in January 2019. Following VA back and ankle examinations in March 2019, the RO issued an April 2019 rating decision that, in pertinent part, continued the previously assigned noncompensable (0 percent) disability ratings for the Veteran's service connected lumbosacral strain and left ankle lateral ligament laxity disabilities. In May 2019, the Veteran requested a Higher Level Review of the April 2019 rating decision. See May 8, 2019 VA From 20-0996. Thereafter, the RO issued a May 2019 Higher Level Review rating decision which, in pertinent part, continued the 0 percent disability ratings for both disabilities. On April 2, 2020, the Veteran filed a VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement)) reflecting his disagreement with the May 2019 rating decision. The Veteran selected the Direct Review lane by submitting notice of disagreement under the appeals Modernization Act (AMA). 38 C.F.R. § 19.2(d). Accordingly, the Board is limited to review of the evidence in the record up and until the date of the rating decision on appeal. 1. Entitlement to compensable rating for service-connected lumbosacral strain. 2. Entitlement to compensable rating for service-connected left ankle lateral ligament laxity. The Veteran is seeking compensable disability ratings for his service-connected lumbosacral strain and left ankle lateral ligament laxity disabilities. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Diagnostic Codes (DCs) are assigned to individual disabilities. DCs provide rating criteria specific to a particular disability. If two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies. 38 C.F.R. § 4.7. When a question arises as to which of two ratings apply under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Id. Separate ratings can be assigned for separate periods of time based on the facts found a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). A staged rating is a rating that looks backwards and retroactively assigns specific ratings to discrete periods. See Reizenstein v. Shinseki, 583 F.3d 1331, 1337 (Fed. Cir. 2009). This practice accounts "for the possible dynamic nature of a disability while the claim works its way through the adjudication process." O'Connell v. Nicholson, 21 Vet. App. 89, 93 (2007); see also 38 C.F.R. § 4.1. The effective date for a staged rating is when it is factually ascertainable that a particular rating is warranted. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). In cases where staged ratings are appropriate, it is necessary to consider all "the evidence of record from the time of the veteran's application." Fenderson, 12 Vet. App. at 127. Lumbosacral Strain The Veteran's service-connected lumbar spine disability is currently rated 0 percent disabling (noncompensable) under DC 5237, which pertains to lumbosacral strain. 38 C.F.R. § 4.71a, DC 5237. Spine disorders are evaluated under either the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Formula for Rating IVDS), whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. §§ 4.71a, Diagnostic Codes, 5235-5243. The General Rating Formula for Diseases and Injuries of the Spine provides for a 10 percent rating 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 assigned 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 assigned 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 assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5242). For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2); see also 38 C.F.R. § 4.71a, Plate V. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. 38 C.F.R. § 4.71a, Diagnostic Code 5237, Note (2). The normal combined range of motion of the cervical spine is 340 degrees. See Id. According to the Formula for Rating IVDS, a 10 percent rating requires evidence of 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 requires evidence of incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months; a 40 percent rating requires evidence of 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 requires evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. An "incapacitating episode" is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). If IVDS is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment will be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Id. at Note (2). The Board notes that the regulations pertaining to rating the spine were amended, effective February 7, 2021. 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). The Board notes that these amendments are not applicable any earlier than their effective date. As there is no evidence dated after February 7, 2021, these amendments are not for application. Here, the Veteran seeks a compensable rating for his thoracolumbar spine disability. He was afforded a VA spine examination in March 2019. The examiner reviewed the evidence of record and evaluated the Veteran. The Veteran presented with complaints of constant shooting pain in his lower back. He had no other complaints about his back. Based on the evaluation, the VA examiner diagnosed the Veteran as having lumbosacral strain. The examiner found that range of motion was normal in all categories tested. The Veteran had forward flexion to 90 degrees; extension to 30 degrees; right later flexion to 30 degrees; left lateral flexion to 30 degrees; right lateral rotation to 30 degrees; and left lateral rotation to 30 degrees. No objective evidence of pain was noted on examination (during passive and active motion or during weight-bearing and non-weight-bearing) and the Veteran did not report having any flare-ups in his condition. The Veteran did not have any additional loss of function or range of motion after repetitive use, and the examiner noted that the evaluation was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner found no evidence of guarding or muscle spasm; normal muscle strength in all categories tested; no muscle atrophy; normal reflexes in the knees and ankles; normal sensation to light touch in the upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes bilaterally; no evidence of radiculopathy or ankylosis; and no neurologic abnormalities or IVDS. The examiner noted that there was no arthritis documented on the imaging studies that were performed and that the Veteran's thoracolumbar spine condition did not impact his ability to work. In a statement that he submitted with his April 2020 VA Form 10182, the Veteran reiterated that he experienced back pain and that the painful motion associated with his back condition and activities involving his back warranted, at the very least, a compensable rating. Where a veteran has a noncompensable rating for a musculoskeletal disability and complains of pain on motion, he or she is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis, and must be considered when raised by the claimant or when reasonably raised by the record. Id. In this case, the Veteran has credibly stated that his lumbosacral strain has been manifested by painful motion throughout the appeal period. Thus, the Board finds that a rating of at least 10 percent rating is warranted for this disability throughout the appeal. To be clear, while a compensable rating for the Veteran's service-connected lumbar spine disability is granted herein, the Board has reviewed the Veteran's lay testimony and the medical records in the claims file and finds that this evidence does not tend to show that his symptoms or disability picture warrant a rating in excess of 10 percent. The next higher rating (i.e., a 20 percent rating) is assigned when there is evidence of 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. On VA examination in March 2019, the Veteran presented with subjective complaints of painful motion, but his range of motion was normal in all categories tested both initially and after repetitive use. There was no objective evidence of pain on active or passive motion nor was there any evidence of pain during weight and non-weight bearing activities. Thus, a higher rating on the basis of limitation of motion is simply not warranted. Similarly, the was no evidence of abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, and there is no evidence of IVDS to warrant consideration of a rating under the Formula for Rating IVDS. Lastly, the evidence of record does not show objective neurologic abnormalities associated with the Veteran's lumbar spine condition. There is accordingly no basis for separate evaluations for any such disorders. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). Based on a thorough review of the evidence, the Board finds that the preponderance of the evidence weighs against assigning a rating in excess of 10 percent for his service-connected thoracolumbar spine disability. It is important for the Veteran to understand that a disability rating at any level will cause the Veteran problems. The only question is the degree of the problems based on the criteria above. The Veteran's thoracolumbar spine problems (i.e., his subjective complaints of pain) are contemplated by the 10 percent rating assigned herein. As a final matter, the Board notes that neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017). Further, the Veteran has not raised the issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to service connected disabilities. Rice v. Shinseki, 22 Vet. App. 447 (2009). Left Ankle Lateral Ligament Laxity The Veteran's service-connected left ankle disability is currently rated 0 percent disabling (noncompensable) under DC 5271, which pertains to limited motion of the ankle. 38 C.F.R. § 4.71a, DC 5271. Pursuant to this diagnostic code, marked limitation warrants a 20 percent rating, while moderate limitation warrants a 10 percent rating. Id. The normal range of motion of the ankle is from 0 to 20 degrees for dorsiflexion, and from 0 to 45 degrees plantar flexion. Id., Plate II. The Board notes that the regulations pertaining to rating the ankles were amended, effective February 7, 2021. 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). The Board notes that these amendments are not applicable any earlier than their effective date. As there is no evidence dated after February 7, 2021, these amendments are not for application. Where a Veteran has a noncompensable rating for a musculoskeletal disability and complains of pain on motion, he or she is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Id. Here, the Veteran seeks a compensable rating for his left ankle disability. A March 2019 VA ankle examination showed left ankle dorsiflexion to 20 degrees and plantar flexion to 45 degrees. In short, range of motion was normal in both categories tested. While objective evidence of pain was not noted on examination, the Veteran explained to the examiner, "I have to careful walking on uneven ground, and there is constant pain in there." He did not report having any flare-up and the examiner noted that the Veteran was able to perform repetitive use testing without any additional loss of function or range of motion. Muscle strength was normal and there was no evidence of ankylosis. There was no evidence of ankle instability or dislocation suspected. Regarding his left ankle, the Veteran was not found to have "shin splints," stress fractures, achilles tendonitis, achilles tendon rupture, malunion of the calcaneus or talus, or evidence of a prior talectomy. In a statement that he submitted with his April 2020 VA Form 10182, the Veteran reiterated that he experienced left ankle pain and that the painful motion associated with his left ankle condition and activities involving his left ankle warranted, at the very least, a compensable rating. The Board finds a 10 percent rating is warranted. The evidence shows that the Veteran has reported painful motion in his left ankle during the appeal period. Although the March 2019 VA examination showed full range of motion, pain was indicated during the appeal period. Even where the Veteran's left ankle does not show a compensable loss of range of motion, a Veteran with a noncompensable rating may still be entitled to at least the minimum compensable rating for the joint involved if the evidence shows that the disability is productive of pain, instability or malalignment. See Burton, 25 Vet. App. at 5; Petitti v. McDonald, 27 Vet. App. 415, 427-28 (2015). In this case, the Veteran has credibly stated that his left ankle lateral ligament laxity has been manifested by painful motion throughout the appeal period. Thus, the Board finds that a rating of at least 10 percent rating is warranted for this disability throughout the appeal period. That said, a rating in excess of 10 percent is not warranted at any time during the appeal period. The Board has reviewed the Veteran's lay testimony and the medical records in the claims file and finds that this evidence does not tend to show that his symptoms result in "marked" limitation of motion which is the criteria that must be found to warrant the next higher 20 percent rating under DC 5271. Thus, the Board finds that the preponderance of the evidence weighs against assigning a rating in excess of 10 percent for his service-connected left ankle disability. It is important for the Veteran to understand that a disability rating at any level will cause the Veteran problems. The only question is the degree of the problems based on the criteria above. The Veteran's left ankle problems (i.e., his subjective complaints of pain) are contemplated by the 10 percent rating assigned herein. As a final matter, the Board notes that neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. at 369-370. Further, the Veteran has not raised the issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to service connected disabilities. Rice, 22 Vet. App. at 447. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael L. Marcum, 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.