Citation Nr: 21006270 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 15-09 805 DATE: February 3, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for the Veteran’s service-connected lower back condition for the period prior to March 28, 2017, is denied. Entitlement to a 40 percent disability rating for the Veteran’s service-connected lower back condition, effective March 28, 2017, is granted. FINDINGS OF FACT 1. For the period prior to March 28, 2017, the Veteran’s lower back disability is more closely analogous to the 10 percent rating criteria. 2. For the period beginning March 28, 2017, the Veteran’s disability is manifested by, at worst, range of motion of forward flexion to 25 degrees, muscle spasms and guarding which do not result in abnormal gait or spinal contour, pain on range of motion, and no ankylosis. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to an initial disability rating in excess of 10 percent for the Veteran’s service-connected lower back condition for the period prior to March 28, 2017, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5237. 2. The criteria for establishing entitlement to a 40 percent disability rating for the Veteran’s service-connected lower back condition, effective March 28, 2017, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5237 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1988 to March 2013. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). When this case was last before the Board in August 2020, it was remanded for additional development. Specifically, the RO was instructed to provide the Veteran with an examination to determine the current severity of his service-connected lower back condition. The Veteran was provided a relevant examination. As such, the Board finds that the AOJ substantially complied with the directives in the August 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating—Legal Criteria Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise the lower rating will be assigned. See 38 C.F.R. § 4.7. In both initial rating claims and normal increased rating claims, the Board must discuss whether “staged ratings” are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. At 54). The Board notes that it has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, with regard to the Veteran’s claims. Lower Back Condition The Veteran’s lumbar spine disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. As relevant to the lumbar spine, under the General Rating Formula for Diseases and Injuries of the Spine, 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 requires 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 if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. There are several notes set out after the diagnostic criteria, which provide the following: First, associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateroflexion is 0 to 30 degrees, and left and right lateral rotation is 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateroflexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is to 240 degrees. Third, in exceptional cases, an examiner may state that, because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in the regulation. Fourth, each range of motion should be rounded to the nearest 5 degrees. Intervertebral disc syndrome is evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in a higher evaluation. In relevant part, the Veteran’s IVDS can be rated at 20 percent disabling with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the last 12 months. A 40 percent rating with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Finally, a 60 percent rating for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For the purposes of evaluations under DC 5243 an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician. Analysis The Veteran contends that he is entitled to increased disability ratings for his lower back condition. He was initially rated 10 percent disabling for his lower back condition which was increased to 40 percent disabling effective September 3, 2020. For the reasons below, the Board disagrees with the RO and finds that the Veteran is entitled to a 40 percent disability rating effective March 28, 2017. The Veteran was initially afforded a November 2013 VA Back examination for his back claim. The VA examiner indicated that the Veteran’s range of motion was as follows: forward flexion of the thoracolumbar spine of 70 degrees, extension of 25 degrees, right and left lateral flexion of 25 degrees, and right and left rotation of 25 degrees. The examiner noted that functional loss was due to pain, fatigue, and lack of endurance. Further, the examiner noted that there was no additional loss of motion due to flare-ups or repetitive use over time. No IVDS was reported, and the Veteran did not use any assistive devices. The Veteran’s VA treatment records indicated that he sought treatment for his lower back pain, however, for the period prior to March 28, 2017, the Veteran’s treatment records do not indicate any significant changes in his lower back condition. Specifically, the Board notes December 2015, January 2016, and February 2016 physical therapy treatment notes which indicate that the Veteran’s lumbar range of motion was within normal limits and at 100% functionality. Additionally, the Board notes a March 2016 lumbar spine x-rays which indicates mild degenerative joint disease with no significant changes from prior studies. However, the Veteran’s lower back condition becomes significantly worse, starting in March 28, 2017, where a physical therapy note indicates that the Veteran’s range of motion in his spine is limited with 50% functional capacity. Further, the Board notes a June 2018 MRI which documents increases in his lumbar pathology since his last study. Additionally, the Veteran in his April 2019 Board hearing indicated that his back condition had worsened since his November 2013 examination. Specifically, the Veteran reported that he could not sit or stand for long periods of time, had to use lumbar support while driving, has muscle spasms in his back, and that he has been taking pain medication and undergoing therapy for his back condition. The Board remanded the Veteran’s claim for a current examination in May 2019, and again in August 2020. The Veteran was then afforded a September 2020 VA examination. The examiner found that at worst, during flare-ups or repetitive use, the Veteran’s range of motion was as follows: forward flexion of the thoracolumbar spine of 25 degrees, extension of 10 degrees, right and left lateral flexion of 10 degrees, and right and left rotation of 10 degrees. Pain was noted on range of motion measurements and functional loss was caused by this pain and fatigue. Further, the examiner noted that the Veteran experienced muscle spasms and guarding which do not resort in abnormal gait or spinal contour. No ankylosis or IVDS was found. The examiner noted that the Veteran experienced pain on passive range of motion and no pain on non-weight bearing. Finally, the examiner noted that the Veteran uses a cane and a back brace. Thus, upon careful consideration of the evidence, the Board determines that a disability rating in excess of 10 percent for the Veteran’s lower back disability for the period prior to March 28, 2017, is not warranted. The 10 percent rating contemplates the Veteran’s limitation of forward flexion to greater than 60 degrees with pain observed with movement. A rating in excess of 10 percent would require forward flexion between 60 and 30 degrees, range of motion of the thoracolumbar spine to not greater than 120 degrees, or unfavorable ankylosis of the Veteran’s spine. Ankylosis of the Veteran’s spine was not observed at any point during the appeal period and the Veteran’s treatment records do not document a worsening spine condition prior to March 28, 2017. Additionally, the Board notes that entitlement to a 40 percent disability rating is warranted beginning March 28, 2017, the date evidence shows that the Veteran’s spine condition had worsened. The 40 percent rating contemplates the Veteran’s limitation of forward flexion of 30 degrees or less. A rating in excess of 40 percent would require unfavorable ankylosis of the Veteran’s spine and as noted above, ankylosis of the Veteran’s spine was not observed at any point during the appeal period. The Board has considered the Veteran’s lay contentions and finds the lay statements are competent insofar as they report observable symptoms, such as pain. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the extent the Veteran asserts that his current disabilities entitles him to a higher disability rating, such statements are inconsistent with the medical evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Additionally, the Board has considered whether a higher rating is warranted at any point prior to March 28, 2017, but finds that it is not, as it is not factually ascertainable that an increase in disability occurred within that period. 38 C.F.R. § 3.400. While the length of time since the prior back examination prompted the Board to remand so that the Veteran could be afforded a new, current, VA examination; the most probative evidence of record, demonstrates that prior to the examination the Veteran’s disability had not worsened to a compensable degree prior to the above cited March 28, 2017 treatment notes. The medical evidence does not speak to a compensable worsening, and the Veteran has not provided any competent lay statements addressing symptoms during this period; therefore, the Board does not find that a higher rating is warranted before March 28, 2017, the date the medical evidence showed a significant worsening in the Veteran’s lower back condition. For these reasons, the Board finds that an initial rating in excess of 10 percent for the Veteran’s low back disability prior to March 28, 2017, is not warranted. Therefore the claim must be denied. The evidence for this period preponderates against an increase so reasonable doubt provisions are inapplicable. 38 C.F.R. § 3.102. (Continued on the next page) However, the Board notes that the evidence is at least in equipoise regarding the Veteran’s entitlement to a 40 percent disability rating beginning March 28, 2017, the date the evidence showed a severe worsening of the Veteran’s lower back condition. A higher 50 percent rating is not warranted as the evidence of the record does not reflect that the Veteran had unfavorable of the entire thoracolumbar spine at any point on appeal. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. As such, the Veteran is entitled to a 40 percent disability rating for his lower back condition, but no higher, for the period beginning March 28, 2017. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham 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.