Citation Nr: 21007622 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 16-28 821 DATE: February 10, 2021 ORDER Entitlement to a higher initial rating of 20 percent for service-connected lumbar spine posterior facet degenerative changes prior to February 13, 2020 is granted. Entitlement to a rating in excess of 20 percent for service-connected lumbar spine posterior facet degenerative changes from February 13, 2020 is denied. FINDING OF FACT The Veteran’s back condition is manifested by painful limitation of motion with forward flexion, at worst, to 45 degrees, but without favorable ankylosis of the entire thoracolumbar spine or intervertebral disc syndrome (IVDS). CONCLUSIONS OF LAW 1. The criteria for a higher initial rating of 20 percent for service-connected lumbar spine posterior facet degenerative changes prior to February 13, 2020 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 2. The criteria for a rating in excess of 20 percent for service-connected lumbar spine posterior facet degenerative changes from February 13, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from February 1970 to February 1973 and from November 1974 to November 1995. This matter comes before the Board of Veterans’ Appeals (Board) following a December 2019 Board remand. This matter was originally on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan (RO). The Veteran was afforded a hearing before the undersigned Veterans Law Judge in June 2019. A transcript of the hearing has been associated with the Veteran’s electronic claims file. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to a veteran’s disability, 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. A Veteran’s entire history is to be considered when making disability evaluations. See 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the issue involves the assignment of a disability rating following the initial award of service connection for that disability, as is the case here, the entire history of the disability must be considered, and 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). In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine on a case by case basis whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. 1. Entitlement to a higher initial rating for service-connected lumbar spine posterior facet degenerative changes The Veteran contends that he is entitled to a higher rating due to back pain and stiffness. The Veteran was granted service connection for his back condition in an April 2013 rating decision, effective August 30, 2011, with an evaluation of 10 percent. A February 2020 rating decision increased the Veteran’s evaluation for his back condition to 20 percent, effective February 13, 2020. The Veteran is seeking an increased rating for his service-connected back condition, currently rated under diagnostic code (DC) 5010-5242, for arthritis due to trauma rated as degenerative arthritis of the spine. 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. 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). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. 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). 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.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information 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. In March 2013 the Veteran was afforded a VA examination. The examiner noted the Veteran experienced low back pain and some cervical/occipital pain. In addition to pain in the low midline region of his lumbar spine with occasional pain extending, up to his midback region, he denied any numbness/tingling or radiculopathy, and history of fracture to his back. The Veteran reported difficulty lifting, and that he could not lift more than 35 pounds and he could not bend over or extend his back due to pain. The examiner noted the Veteran occasionally uses a cane for assistance, and has no bowel or bladder dysfunction and no weakness in the legs/feet or radicular symptoms. In addition, the examiner noted the Veteran has low-grade constant pain in his lower back, which becomes severe one to two times per month. The examiner noted flare-ups consist of low back pain and spasms. The examiner noted the Veteran’s forward flexion was 90 degrees or greater, extension to 25 degrees, right lateral flexion to 25 degrees, left lateral flexion to 30 degrees or more, right lateral rotation to 10 degrees or greater, and left lateral rotation to 25 degrees. The examiner noted the Veteran’s functional limitation resulted in less movement than normal and pain on movement. The examiner indicated the Veteran did not have guarding or muscle spasm, or intervertebral disc syndrome (IVDS). A December 2013 examiner noted the Veteran complained of constant discomfort and pain. The examiner did not indicate a range of motion testing or functional impact. The Veteran was provided a private DBQ from Dr. A.K. in July 2019. The Veteran reported flare-ups in the neck and back with severe intermittent pain. Dr. A.K. noted that the Veteran had pain causing difficulty with ambulation and interference with standing, and that the Veteran has had a vertebral fracture. The DBQ does not contain range of motion measurements and does not indicate a review of the Veteran’s claims file. The examiner noted the Veteran had normal range of motion upon examination. The examiner noted pain on active/passive and/or repetitive use testing. Further, the examiner noted the Veteran experienced pain in weightbearing and non-weightbearing. The examiner noted the Veteran does not have guarding or muscle spasm but has pain and difficulty ambulating. The examiner indicated the Veteran has atrophy and weakness due to lack of physical activity as a result of limited range of motion, due to pain and degenerative joint disease. The examiner noted the Veteran does not have ankylosis or IVDS. In February 2020 the Veteran was afforded a new VA examination. The examiner noted the Veteran’s back and knees both limit activity equally. The examiner indicated the Veteran did not experience radicular symptoms and did not report flares. The Veteran reported he is markedly limited in bending and lifting, and experiences moderate limitation in walking. The examiner indicated the Veteran’s range of motion in forward flexion is limited to 60 degrees, extension to 15 degrees, left lateral flexion to 15 degrees, right lateral flexion to 15 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. The examiner noted pain on examination causes functional loss in all ranges of motion, and there was evidence of pain with weight bearing. The examiner reported the Veteran’s range of motion after three repetitions in forward flexion was limited to 45 degrees, extension to 15 degrees, left lateral flexion to 10 degrees, right lateral flexion to 10 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 10 degrees. The examiner noted that he was unable to describe range of motion for repeated use over time. The examiner stated limitation is to duration or number of repetitions, and degree of limitation will vary with the nature of activity, thus stating specific limitations to range of motion would be entirely speculative. The examiner indicated the Veteran has guarding, not resulting in abnormal gait or abnormal spinal contour. However, the Veteran has muscle spasm resulting in abnormal gait or abnormal spinal contour. Additionally, the examiner indicated the Veteran does not experience muscle atrophy, radiculopathy, ankylosis, or IVDS. The examiner noted there was pain in non-weight bearing position. The examiner also noted he was medically contraindicated for testing pain with passive range of motion. The examiner noted the Veteran can only perform sedentary work due to his back condition. The Board has reviewed the Veteran’s medical records for the period on appeal. These records do not contain pertinent findings that reflect a disability picture that is more severe than is depicted in the VA examination reports. The Veteran’s forward flexion was limited to, at worst, 45 degrees and the evidence does not reflect ankylosis of the thoracolumbar spine. The March 2013 examiner reported the Veteran’s thoracolumbar spine forward flexion was greater than 85 degrees, and his combined range of motion was greater than 120 degrees but not greater than 235 degrees. The examiner indicated the Veteran did not have IVDS. The July 2019 VA examiner noted the Veteran had normal range of motion upon examination and noted the Veteran did not have ankylosis or IVDS. The February 2020 VA examiner noted that he was unable to describe range of motion for repeated use over time and provided a reason. The Board finds that the VA examiner's response is adequate. VA does not have to demand a conclusive opinion from the examiner. See Jones v. Shinseki, 23 Vet. App. 382, 391 (2010) ("While VA has a duty to assist the Veteran by providing a medical examination in certain situations, that duty does not extend to requiring a VA physician to render an opinion beyond what may reasonably be concluded from the procurable medical evidence."). A higher rating cannot be based on medical speculation and certainly not lay speculation. 38 C.F.R. § 3.102. Neither the Veteran nor the Board can speculate and arbitrarily pick a disability rating; there must be a basis in fact for the assigned rating. Id. Thus, a higher evaluation cannot be awarded based on speculation of additional functional loss during repeated use over time. Also, the Veteran did not report flares. When the Veteran previously reported flare-ups, they were only described as consisting of low back pain and spasms. Pain and spasms are compensated at all levels of the rating criteria. The Veteran demonstrated full range of flexion motion on VA examination in 2013, and he was noted to have normal range of motion in July 2019. The 2020 VA examiner noted there was pain on range of motion which caused functional loss as demonstrated by loss of degrees of motion on forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation. After repetitive use testing, forward flexion was additionally limited to 45 degrees. Thus, the Board finds that the overall functional impairment associated with the Veteran’s back is that sometimes he has full range of motion and when he is symptomatic his functional impairment fits squarely within the symptomatology contemplated in a 20 percent rating. For that reason, the Board finds that the Veteran is entitled to a 20 percent rating for the entire appeal period. 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. As noted above, the Veteran’s VA examinations either found he did not have IVDS or that he was not prescribed bed rest by a physician. (continued on next page) Based on the foregoing, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for a back condition from February 13, 2020, but a higher rating of 20 percent prior to February 13, 2020 is warranted. 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.