Citation Nr: 21007690 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 12-02 771 DATE: February 10, 2021 ORDER From September 26, 2003 to February 5, 2008, an increased initial disability rating of 10 percent (but not higher) for service-connected degenerative arthritis of the spine (back condition) is granted. From February 6, 2008 to April 20, 2012, excluding a period of temporary total disability, an increased disability rating of 20 percent (but not higher) for a service-connected back condition is granted. From May 1, 2012 to September 11, 2015, an increased disability rating of 40 percent (but not higher) for a service-connected back condition is granted. From September 12, 2015, an increased disability rating in excess of 40 percent for a service-connected back condition is denied. FINDINGS OF FACT 1. The Veteran provided competent and credible statements that, from September 26, 2003 to February 5, 2008, his back disorder was manifested by painful motion. 2. As to the period from February 6, 2008 to April 30, 2012, excluding a period of temporary total disability, the Board will infer that the missing measurements from the February 2008 VA examination would have supported a 20 percent disability rating. 3. As to the period from May 1, 2012 to September 11, 2015, the Board will infer that the missing measurements from the May 2012 and September 2015 VA examinations would have supported a 40 percent rating. 4. From September 12, 2015, the Veteran displayed no unfavorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. From September 26, 2003 to February 5, 2008, the criteria have been met for an increased initial disability rating of 10 percent (but not higher) for a service-connected back condition. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.40-4.46, 4.71a, DC 5235-5243. 2. From February 6, 2008 to April 20, 2012, excluding a period of temporary total disability, the criteria for a disability rating of 20 percent (but not higher) for a service-connected back condition. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.40-4.46, 4.71a, DC 5235-5243. 3. From May 1, 2012 to September 11, 2015, the criteria have been met for a disability rating of 40 percent (but not higher) for a service-connected back condition. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.40-4.46, 4.71a, DC 5235-5243. 4. From September 12, 2015, the criteria have not been met for a disability rating greater than 40 percent for a service-connected back condition. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.40-4.46, 4.71a, DC 5235-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from March 1969 to February 1971. These matters are before the Board of Veteran’s Appeals (Board) on appeal from an April 2009 rating decision of a Department of Veteran Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board for additional development on April 2018. In an October 2019 decision, the Board denied increased ratings for the Veteran’s back condition. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Veterans Court). In a July 2020 Joint Motion for Remand (JMR), the parties agreed that the Board erred by providing an inadequate statement of reasons or bases. 38 U.S.C. § 7104(d)(1). In a July 2020 Order, the Veterans Court granted the JMR. The case has now returned to the Board and is now assigned to the undersigned. Increased Ratings Increased ratings for degenerative arthritis of the spine. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). The Veteran’s degenerative arthritis of the spine has been rated under Diagnostic Code (DC) 5242, for degenerative arthritis of the spine, and the General Rating Formula for Diseases and Injuries of the Spine, which provide the criteria for rating the disability with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71(a), DC 5242. 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. Id. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less, or, for favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Any associated objective neurologic abnormalities are to be evaluated separately, under an appropriate diagnostic code. Id. at Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees. Id. at Note (2). 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. Id. All measured ranges of motion are to be rounded to the nearest five degrees. Id. at Note (4). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5). 1. From September 26, 2003 to February 5, 2008, an increased initial disability rating of 10 percent (but not higher) for a service-connected back condition is granted. Factual Background The Veteran attended a November 2003 VA examination during which he received a musculoskeletal examination. The physician did not provide the Veteran’s range of motion for his lumbar spine. The physician tested both the Veteran’s hips and lumbar spine and reported that the Veteran did not report pain on range of motion testing of either. The Veteran also stated that he felt no pain from walking or prolonged standing, no pain on range of motion of hips and he denied any neurological problems in the lower extremities. The conducting physician failed to opine on whether the Veteran could have experienced additional functional loss due to pain after repeated use over time or during flare-ups. The Veteran stated in December 2003 correspondence that the November 2003 VA examination was inadequate due to the examiner rushing through the examination and not giving the Veteran an opportunity to discuss his lower back injury. The Veteran reported experiencing back pain dating back to 2003 in May 2009 and August 2009 statements. Analysis The Board acknowledges that the November 2003 VA examiner did not provide range of motion measurements and failed to opine as to whether the Veteran could have experienced additional functional loss due to pain after repeated use over time or during flare-ups. See Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016); Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). Accordingly, the Board cannot assign this opinion significant probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Board finds that the Veteran is competent to report his symptoms of back pain. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Considering the painful motion of the Veteran’s back, the Board finds that at least the minimum compensable disability rating for the joint, which is 10 percent, is warranted pursuant to 38 C.F.R. § 4.59 (2017). Because pain was referenced during this entire portion of the appeal period, the Board finds that a 10 percent disability rating is warranted throughout this entire portion of the appeal period for the Veteran’s back condition. However, there is no evidence that the Veteran met the criteria for a 20 percent disability rating during this portion of the appeal period. The Board also finds that the assigned 10 percent disability rating fully contemplates any functional impairment or functional loss reflected by the manifestations of the Veteran’s service-connected back disorder, which have included painful motion. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017). 2. From February 6, 2008 to April 30, 2012, excluding a period of temporary total disability, an increased disability rating of 20 percent (but not higher) for a service-connected back condition is granted. Factual Background At a February 2008 VA examination, the Veteran reported pain in his lower back that was a 3-4 on a scale from 1-10. The Veteran stated that the pain radiated into his right lower extremity, that he had difficulty walking up the stairs but denied any other motor deficits. The Veteran also reported that his pain increases when he sits for more than 45 minutes and when on a lawnmower. The examiner conducting the examination reported 0-80 degrees of forward flexion of the lumbar spine, that there was no difference between passive and active range of motion and there was no change with repetition. The examiner did not provide range of motion for weight-bearing or non-weight-bearing testing. In addressing DeLuca provisions, the examiner opined that there was “mild discomfort with examination of the lumbar spine” and that it was “conceivable that pain could further limit function as described particularly with repetition,” but that it was not feasible to attempt to express any of the Veteran’s further limitations of function from pain in terms of additional limitation of motion, because those matters could not be determined with any degree with medical certainty. The examiner noted that there was mild discomfort associated with examination of the Veteran’s lumbar spine and that it was conceivable that pain could further limit function as described as particularly with repetition. X-rays of the lumbar spine from February 2008 showed no fracture, dislocation or bony destructive lesion. The Veteran reported that he was experiencing back pain in May 2009, August 2009 and December 2009 statements. Analysis The Board acknowledges that the February 2008 VA examiner did not provide range of motion measurements for weight-bearing or non-weight-bearing testing. Correia supra. The Board also acknowledges that the February 2008 VA examiner failed to adequately explain his failure to provide a non-speculative opinion. Sharp supra. The Board elects to not remand this matter for a retrospective opinion because, from a practical standpoint, it is frequently virtually impossible to retrospectively obtain the evidence needed to address the deficiencies of the February 2008 VA examination; remanding these issues can often lead to a cycle of non-compliant examination reports and subsequent remands that can delay the claim for years without an effective resolution. The Board will not place the burden on the Veteran for the fact that the VA examiner did not obtain all the necessary information at the time of the examination. Rather, the Board will infer that any missing information from the February 2008 VA examination would support the next highest rating (20 percent) for this portion of the period on appeal. However, the Board also finds that a still higher (40 percent) disability rating is not warranted. There is no probative evidence of record that the Veteran’s forward flexion was limited to 30 degrees or less or that there was favorable ankylosis of the entire thoracolumbar spine during this portion of the period on appeal. Accordingly, from February 6, 2008 to April 30, 2012, excluding a period of temporary total disability, a disability rating of 20 percent (but not higher) for a service-connected back condition is granted. 3. From May 1, 2012 to September 11, 2015, an increased disability rating of 40 percent (but not higher) for a service-connected back condition is granted. Factual Background The Veteran attended a May 2012 VA examination during which he reported flare-ups which impacted the function of his back. He stated that he had constant ache, burn, stiffness and back pain which traveled down to his right leg. The examiner conducting the examination reported 0-50 degrees of forward flexion of the lumbar spine. The examiner noted that the Veteran did not have guarding or muscle spasm of the thoracolumbar spine nor muscle atrophy. The examiner did not provide separate range of motion measurements for active and passive motion, or for weight-bearing and non-weight-bearing. The examiner did not describe the impact of flare-ups in terms of additional range of motion loss. The Veteran later attended a September 2015 VA examination where he reported pain in his lower pain and associated lumbar radiculopathy pain at times with certain activities. The physician conducting the examination opined the Veteran’s back pain could potentially limit his ability to perform heavy duty or exertional occupations requiring lifting or other such strenuous activities; however, it would not be expected to limit the Veteran’s ability to perform light duty and sedentary occupation. The examiner noted additional functional loss due to flare-ups and after repeated use over time, but, stated that he was unable to describe in terms of range of motion because it was “mainly pain.” The examiner did not provide measurements for when pain began upon range of motion. Additionally, though the examiner noted a lack of pain with weight bearing, he did not indicate separate testing of non-weight-bearing or active and passion motion. Analysis The Board acknowledges that the May 2012 VA examiner did not provide separate range of motion measurements for active and passive motion, or for weight-bearing and non-weight-bearing and did not explain why such testing could not or should be done as required by regulation. Correia, supra. The Board also acknowledges that the examiner did not describe the impact of flare-ups in terms of additional range of motion loss. Sharp, supra. Additionally, the Board acknowledges that the September 2015 VA examiner did not provide measurements for when pain began upon range of motion. DeLuca, supra. The Board also acknowledges that the examiner did not indicate separate testing of non-weight-bearing or active and passive motion. Correia, supra. For the same reasons explained in the previous section, the Board will not remand this matter for a retrospective opinion to address the deficiencies of the May 2012 and September 2015 VA examinations. Rather, the Board will infer that any missing information from the May 2012 and September 2015 VA examination reports would support the next highest rating (40 percent) for this portion of the period on appeal. However, the Board also finds that a still higher, 40 percent disability rating is not warranted. There is no probative evidence of record that the Veteran had unfavorable ankylosis of the entire thoracolumbar spine during this portion of the period on appeal. Accordingly, from May 1, 2012 to September 11, 2015, a disability rating of 40 percent (but not higher) for a service-connected back condition is granted. (Continued on the next page) 4. From September 12, 2015, an increased disability rating in excess of 40 percent for a service-connected back condition is denied. Factual Background The Veteran was afforded another September 2015 VA examination during which he reported flare ups and tenderness of his lower back. The examiner found that the Veteran had guarding or muscle spasm of the thoracolumbar spine but that it did not result in abnormal gait or abnormal spinal contour. The examiner also noted that the Veteran did not have ankylosis of the spine. The Veteran attended another VA examination in May 2017 where he once again reported flare-ups and tenderness. The Veteran reported functional impairment due to the pain and that lifting his arms hurts so he is unable to slip shirts on or off or wash his back. The physician conducting the examination noted that the Veteran did not have ankylosis of the spine. Analysis The Board finds that, from September 12, 2015, the preponderance of the evidence is against a finding that the Veteran’s symptoms more nearly approximated a higher, 50 percent, evaluation. A 50 percent rating is only warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. Both the September 2015 and May 2017 VA examinations indicated that the Veteran did not have ankylosis. (Continued on the next page)   Accordingly, the Veteran does not meet the criteria for an increased disability rating in excess of 40 percent for a service-connected back condition for this portion of the appeal period. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexander Bahus 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.