Citation Nr: 21005626 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 13-21 766 DATE: February 2, 2021 ORDER Entitlement to an increased evaluation in excess of 10 percent for a thoracolumbar spine strain prior to March 19, 2019, and in excess of 20 percent thereafter for a thoracolumbar spine strain recharacterized as degenerative arthritis of the spine is denied. Entitlement to an increased evaluation in excess of 10 percent for the residuals of a post-surgical right ankle strain with degenerative arthritis prior to June 6, 2018, and in excess of 20 percent thereafter, is denied. FINDINGS OF FACT 1. The preponderance of the evidence supports a finding that prior to March 19, 2019 the Veteran’s thoracolumbar spine strain symptoms is manifested by forward flexion greater than 60 degrees but not greater than 85 degrees with muscle spasms and evidence of painful motion diagnosed. 2. The preponderance of the evidence supports a finding that on/after March 19, 2019 the Veteran’s thoracolumbar spine strain symptoms is manifested by forward flexion greater than 30 degrees, but not greater than 60 degrees with muscle spasms and evidence of painful motion diagnosed. 3. The preponderance of the evidence supports a finding that prior to June 6, 2018, the Veteran’s residuals of a post-surgical right ankle strain with degenerative arthritis is manifested by moderate limitation of motion with evidence of painful motion diagnosed. There is a findings of marked limitation of motion as of June 2018, but there is no evidence of ankylosis of the ankle. CONCLUSIONS OF LAW 1. The criteria for an increased evaluation in excess of 10 percent for a thoracolumbar spine strain prior to March 19, 2019, and in excess of 20 percent thereafter for thoracolumbar spine strain recharacterized as degenerative arthritis of the spine are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38C.F.R. §§ 3.102, 4.1, 4.7, 4.71, DC 5237, 5242 (2019). 2. The criteria for an increased evaluation in excess of 10 percent for the residuals of a post-surgical right ankle strain with degenerative arthritis prior to June 6, 2018, and in excess of 20 percent thereafter, are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38C.F.R. §§ 3.102, 4.1, 4.7, 4.71, DC 5024-5271 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in from December 1990 to December 2010. In July 2019, the Board remanded the Veteran's claim for additional development. The Board finds that there was substantial compliance with the July 2019 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. A 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 an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Prior to June 6, 2018 the Veteran’s right ankle disorder is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5024-5271, for limitation of motion of the ankle. Under Diagnostic Codes 5003, arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major or minor joint groups will warrant a 10 percent rating, and two or more major or minor joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The 10 percent and 20 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note 1. Under Diagnostic Code 5024 for tenosynovitis, the disability is rated on limitation of motion of the affected part, or as degenerative arthritis under Diagnostic Code 5003. 38 C.F.R. § 4.71a. Under Diagnostic Code 5270 for ankle ankylosis, a 20 percent evaluation for ankylosis of the ankle in plantar flexion at less than 30 degrees. A 30 percent evaluation is warranted for ankylosis in plantar flexion between 30 degrees and 40 degrees or in dorsiflexion, between 0 and 10 degrees. A 40 percent evaluation is potentially available with ankylosis in plantar flexion at more than 40 degrees or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5270. Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limited motion of the ankle. A maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. 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 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). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information v about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Prior to March 19, 2019, the Veteran’s thoracolumbar spine strain was rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237, for a lumbosacral strain. On/after March 19, 2019, the Veteran’s thoracolumbar is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242, for degenerative arthritis of the spine. Diagnostic Codes 5237 and 5242 are rated under the General Rating Formula for Diseases and Injuries of the Spine. A 10 percent rating is warranted 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 warranted 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 warranted 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 warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.   1. Entitlement to an increased evaluation in excess of 10 percent for a thoracolumbar spine strain prior to March 19, 2019, and in excess of 20 percent thereafter for a thoracolumbar spine strain recharacterized as degenerative arthritis of the spine. The Veteran contends that he is entitled to an increased evaluation in excess of 10 percent for a thoracolumbar spine strain (spinal disorder) prior to March 19, 2019, and in excess of 20 percent thereafter for a thoracolumbar spine strain recharacterized as degenerative arthritis of the spine. In an August 2015 VA back conditions examination, the examiner diagnosed the Veteran with a lumbar spine strain with intervertebral disc syndrome and IVDS of the right sciatic nerve. The Veteran reported flare-ups and functional loss with symptoms of radiating pain, stiffness, and tingling sensations limiting his range of motion. Forward flexion was noted at 70 degrees and extension was noted at 10 degrees with no evidence of weight bearing pain, localized tenderness, ankylosis, or pain on palpitation. Weakness, fatigability, and muscle spasms of the thoracolumbar spine was diagnosed with no evidence of an abnormal gait or guarding. Mild radiculopathy of the right lower extremity was noted with IVDS not requiring bed rest in the past twelve months diagnosed. In a June 2018 VA back conditions examination, the examiner diagnosed the Veteran with a thoracolumbar strain, thoracolumbar degenerative joint disease, and IVDS of the right sciatic nerve. The Veteran reported flare-ups that he described as achy and intensifies during activity. Flexion was noted at 70 degrees and extension at 25 degrees with evidence of localized tenderness and pain on palpitation. Muscle spasms of the lumbar spine was diagnosed with no evidence of an abnormal gait, guarding, or abnormal spinal contour noted. Muscle atrophy and ankylosis was diagnosed a negative with evidence of IVDS not requiring bed rest in the past twelve months noted. The Veteran reported the use of a cane constantly as an assistive device for his lower back pain. X-ray findings reveal arthritis of the thoracolumbar spine with evidence of weight-bearing pain. Concerning functional and occupational limitations, the examiner noted that the Veteran is best suited for sedentary work and should avoid repetitive bending, lifting, running, jumping, or stair climbing. Review of the record does not provide a basis for granting a rating in excess of 10 percent for the Veteran’s spinal disorder prior to March 19, 2019. There is no 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. Consideration has also been given to assigning a rating under the Formula for Rating IVDS based on incapacitating episodes. However, the evidence of record is against a finding that the Veteran ever experienced incapacitating episodes as a result of his IVDS or 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. Moreover, degenerative arthritis of the Veteran’s spinal disorder with occasional incapacitating exacerbations was not diagnosed prior to March 19, 2019 which would warrant the assignment of a higher evaluation under Diagnostic Code 5003. The Board also reviewed and carefully considered the Veteran’s lay statements asserting that the severity of his service-connected spinal disorder warrants an increased evaluation. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to a spinal disorder as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In summation, the Board finds that the Veteran’s spinal disorder is manifested by forward flexion greater than 60 degrees but not greater than 85 degrees with muscle spasms and evidence of painful motion. The Board notes that although muscle spasms of the spine were diagnosed, the Veteran’s muscle spasms were not severe enough to result in guarding, an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 20 percent evaluation is not warranted as there is no 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. Thus, an evaluation in excess of 10 percent for a spinal disorder prior to March 19, 2019 is not warranted. The Board now turns to discuss whether an evaluation in excess of 20 percent for a spinal disorder on/after March 19, 2019. In a March 2019 VA back conditions examination, the examiner diagnosed the Veteran with degenerative arthritis of the spine. The Veteran reported flare-ups that he described as restricting his ability of flexion and extension. Flexion was noted at 80 degrees and extension at 20 degrees with evidence of localized tenderness and pain on palpitation. Pain, weakness, and fatigability was noted with repeated use over time. Muscle spasms of the lumbar spine was diagnosed as negative with no evidence of an abnormal gait, guarding, or abnormal spinal contour noted. Muscle atrophy, ankylosis, and IVDS was also diagnosed a negative. The Veteran reported the use of a cane and brace occasionally as assistive devices for his lower back pain. Concerning functional and occupational limitations, the examiner noted that the Veteran deals with spinal disorder pain daily and that he is only impacted when he has to bend over. Review of the record does not provide a basis for granting a rating in excess of 20 percent for the Veteran’s spinal disorder on/after to March 19, 2019. There is no evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Consideration has also been given to assigning a rating under the Formula for Rating IVDS based on incapacitating episodes. However, the evidence of record during the March 2019 VA examination is against a finding that the Veteran has a diagnosis of IVS or experienced incapacitating episodes as a result of his IVDS or 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 also reviewed and carefully considered the Veteran’s lay statements asserting that the severity of her service-connected spinal disorder warrants an increased evaluation. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to her senses. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to a spinal disorder as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In summation, the Board finds that the Veteran’s spinal disorder is manifested by 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 30 percent evaluation is not warranted as there is no evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Thus, an evaluation in excess of 20 percent for a spinal disorder on/after to March 19, 2019 is not warranted. Based on the foregoing, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for a spinal disorder prior to March 19, 2019 and in excess of 20 percent thereafter. In denying such a rating, the Board finds that the evidence for this period preponderates against an increase, so the benefit of the doubt provisions is inapplicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to an increased evaluation in excess of 10 percent for the residuals of a post-surgical right ankle strain with degenerative arthritis prior to June 6, 2018, and over 20 percent thereafter Initially, the Board notes that after the supplemental statement of the case was issues, an additional examination of the right ankle was conducted. It does not provide information different from what is on file and as such, it is determined that remand for consideration of that examination by the Originating Agency is not required as it provides no new or difference information that would potentially change the outcome of the appeal as to this issue. The Veteran contends that he is entitled to an increased evaluation in excess of 10 percent prior to June 6, 2018 for the residuals of a post-surgical right ankle strain with degenerative arthritis (right ankle disorder), and over 20 percent thereafter. In a July 2015 VA ankle conditions examination, the examiner diagnosed the Veteran with the following right ankle disorders a right ankle lateral collateral ligament sprain, impingement, and tendonitis. The Veteran reported nearly constant pain in his right ankle with fare-ups. Functional loss was also noted as the Veteran reported that he has pain and difficulty with his daily activities. The Veteran also reported that he has difficulty standing or walking for prolonged periods. Dorsiflexion of the right ankle was noted at 10 degrees with plantar flexion noted at 15 degrees with evidence of weight bearing pain, localized tenderness, pain on palpitation, and crepitus. Concerning weakness and fatigability, the examiner was unable to offer an opinion without resulting to mere speculation. Ankylosis was diagnosed as negative with evidence of right ankle instability. The Veteran reported using a brace regularly for his right ankle. Concerning occupational and functional impact, the examiner noted that the Veteran’s right ankle impacts his ability to squat, kneel, stand, walk, lift/carry, and climb without pain. The examiner also noted that it would be mere speculation to state what the functional decrease in range of motion would be secondary to repetitive movements or flare-ups. In a May 2016 VA ankle conditions examination, the examiner diagnosed the Veteran with the following right ankle disorders: a right ankle lateral collateral ligament sprain; tendonitis; gout; an ankle strain; and a post-surgical right ankle strain. The Veteran reported flare-ups resulting in functional loss with pain when walking, standing, or sitting for a long time. Dorsiflexion was noted at 5 degrees and planter flexion was noted at 25 degrees with objective evidence of localized tenderness and pain on palpitation of the medial and lateral malleolus. The examiner also diagnosed weight bearing pain with evidence of crepitus, fatigability, and weakness or the right ankle. Atrophy, degenerative arthritis, and ankylosis was diagnosed as negative, but right ankle instability was diagnosed. The Veteran reported the constant use of a brace for his right ankle and the occasional use of a cane. Concerning occupational and functional impact, the examiner noted that the Veteran’s right ankle impacts his ability to stand, sit, run, or walk for prolonged periods of time. Review of the record does not provide a basis for granting a rating in excess of 10 percent for the Veteran’s right ankle disorder during the appeal period. Prior to June 6, 2018, there is no evidence of marked limitation of motion, degenerative arthritis with occasional incapacitating exacerbations, or ankylosis in the Veteran’s right ankle which would warrant a 20 percent evaluation. As of those June 2018 findings, it was determined that there was marked limitation of ankle motion. There has not been prior to or after those findings, any indication of ankylosis of the right ankle. Thus, a rating in excess of 20 percent after June 2018 is not shown. The Board has considered whether any other Diagnostic Codes related to disabilities of the ankle would provide for a higher disability rating. However, as noted, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. The Veteran does not have a diagnosis of right ankle ankylosis which would warrant the assignment of a higher evaluation under Diagnostic Code 5270. Moreover, degenerative arthritis of the Veteran’s right ankle with occasional incapacitating exacerbations was not diagnosed prior to June 6, 2018 which would warrant the assignment of a higher evaluation under Diagnostic Code 5003. The Board also reviewed and carefully considered the Veteran’s lay statements asserting that the severity of her service-connected right ankle disorder warrants an increased evaluation. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to a right ankle disorder as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In summation, the Board finds that prior to June 6, 2018 the Veteran’s right ankle disorder is manifested by moderate limitation of motion with evidence of painful motion diagnosed. A 20 percent evaluation is not warranted as there is no evidence of marked limitation of motion, degenerate arthritis occasional incapacitating exacerbations, or ankylosis. As noted, thereafter, the 20 percent rating has been assigned for marked limitation of motion. Without a showing of ankylosis, there is no basis to assign a rating in excess of 20 percent. Based on the foregoing, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for a right ankle disorder prior to June 6, 2018, and in excess of 20 percent thereafter. In denying such a rating, the Board finds that the evidence for this period preponderates against an increase, so the benefit of the doubt provisions is inapplicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Elliot Harris, 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.