Citation Nr: 21008671 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 16-20 458 DATE: February 17, 2021 ORDER Entitlement to an initial rating in excess of 40 percent for thoracolumbar disc herniation, lumbar disc disease, and intervertebral disc syndrome is denied. Entitlement to an initial rating in excess of 20 percent for left elbow status post fracture with limitation of flexion is denied. Entitlement to an initial rating in excess of 20 percent for left elbow status post fracture with impairment of supination and pronation is denied. FINDINGS OF FACT 1. The Veteran’s thoracolumbar disc herniation, lumbar disc disease, and intervertebral disc syndrome is not manifested by unfavorable ankylosis of the entire thoracolumbar spine or symptoms approximating unfavorable ankylosis of the entire thoracolumbar spine. 2. The Veteran’s left elbow status post fracture with limitation of flexion has been manifested by, at worst, pain and limitation of flexion to 80 degrees. Even considering pain during flare-ups and after repetitive use over time, the disability did not manifest with symptoms equivalent to limitation of flexion to 55 degrees or less. 3. The Veteran does not exhibit symptoms which show or more nearly approximate fixation of the left hand in supination or pronation. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 40 percent for thoracolumbar disc herniation, lumbar disc herniation, and intervertebral disc syndrome have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Codes (DC) 5237. 2. The criteria for entitlement to an initial rating in excess of 20 percent for left elbow status post fracture with limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5003, 5206. 3. The criteria for entitlement to an initial rating in excess of 20 percent for left elbow status post fracture with impairment of supination and pronation have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5003, 5213. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from February 2007 to February 2014, including service in the Southwest Asia theater of operations. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which, in relevant part, granted service connection for thoracolumbar disc herniation and assigned an initial 10 percent rating, effective February 27, 2014; granted service connection for left elbow status post fracture and assigned an initial noncompensable rating, effective February 27, 2014. The Veteran filed a timely notice of disagreement, received by VA in January 2015. In March 2016, the RO issued a statement of the case. The Veteran’s substantive appeal was received by VA in May 2016. The Veteran was afforded a hearing by videoconference before the undersigned Veterans Law Judge in October 2019. A hearing transcript has been associated with the claims file. In August 2020, the Board remanded the matter for additional evidentiary development. While the matter was in remand status, in an October 2020 rating decision, the RO recharacterized the Veteran’s low back disability as thoracolumbar disc herniation, lumbar disc herniation, and intervertebral disc syndrome, and increased the initial rating for that disability to 40 percent. In addition, the RO assigned an initial 20 percent rating for left elbow status post fracture with limitation of flexion and a separate 20 percent initial rating for left elbow status post fracture with impairment of supination and pronation. Although higher initial ratings were granted, the issues remain in appellate status as described above as the maximum schedular ratings were not assigned from the date of service connection. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Also in the October 2020 rating decision, the RO granted service connection for left ulnar neuropathy and assigned an initial 20 percent rating effective October 2, 2020; granted service connection for left lower extremity radiculopathy and assigned an initial 10 percent rating, effective February 27, 2014; and granted service connection for right lower extremity radiculopathy and assigned an initial 10 percent rating, effective date of February 27, 2014. The record currently available to the Board contains no indication that the Veteran has initiated an appeal with respect to the downstream elements of effective date or initial rating for any of these disabilities. Thus, those matters are not before the Board in this appeal. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on the Veteran’s average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body to function under the ordinary conditions of daily life, including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence used to decide whether an [initial] rating on appeal was erroneous. Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of an initial rating, staged ratings may be assigned for separate periods of time based on facts found. Id. 1. Entitlement to an initial rating in excess of 40 percent for thoracolumbar disc herniation, lumbar disc herniation, and intervertebral disc syndrome. The Veteran’s thoracolumbar disc herniation, lumbar disc herniation, and intervertebral disc syndrome disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, 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 are to be evaluated separately under an appropriate diagnostic code. Id. At Note 1. Unfavorable ankylosis is defined as “a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire 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.” Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always” considered favorable ankylosis. Id. 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.”). 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. Turning to the evidence of record, the Board notes that during the Veteran’s active service, he developed back pain. Private treatment records from September 2012 revealed a right L5-S1 disc herniation. At that time, surgical discectomy was performed. Prior to separation from service in February 2014, the Veteran was afforded a VA examination in January 2014. At that time, the Veteran was found to have forward flexion limited to 80 degrees. There was no ankylosis of the spine. The Veteran denied flare-ups of the thoracolumbar spine and there was no objective evidence of painful motion, or guarding of the thoracolumbar spine or spasm resulting in abnormal gait or spinal contour. The examiner indicated that the Veteran did not have incapacitating episodes of the thoracolumbar spine. In addition, the VA examiner noted that the Veteran’s thoracolumbar spine (back) condition did not impact his ability to work. In May 2016, the Veteran saw private providers to treat back pain that radiated into his left lower extremity. The Veteran reported occasional flare-ups of his back pain and radiating symptoms. He reported that his pain became worse with bending, sitting, standing, and walking. The private provider noted that active flexion of the Veteran’s lumbosacral spine was mildly limited with pain, active extension was mildly limited, and active rotation to the left and right were both moderately limited with pain in the left leg. June 2016 private treatment records note that the Veteran continued to complain of low back and left leg pain and his forward flexion was limited to 60 degrees. The impressions were left S1 radiculopathy clinically and L5-S1 disc disease. In July 2016, the Veteran again complained to private providers of low back and left leg pain, and an MRI indicated the possibility of inflammation or neuritis. The Veteran sought private treatment for low back and leg pain again in June 2018. He described episodic low back discomfort and sharp pain. At that time, he denied consistent radicular complaints or weakness in the lower limbs. At the October 2019 hearing before the undersigned Veterans Law Judge, the Veteran testified that he had had pain in his right leg before surgery. Then, later on, he began to have pain in his left leg. The Veteran also explained that his back goes out multiple times per year, especially in the winter months. He testified that his back was always stiff and was worse when he wakes up or if he sits for a long period of time. He further stated that he can barely move sometimes. In accordance with the Board’s August 2020 remand, the Veteran was afforded a second VA examination in October 2020. At that time, the Veteran was noted to have forward flexion limited to 40 degrees and severe radicular pain due to radiculopathy on both sides. There was no ankylosis of the spine. The Veteran reported flare-ups that cause increased pain. Pain, weakness, fatigability or incoordination was noted to limit functional ability with a flare-up and forward flexion during a flare up was estimated to be limited to 10 degrees. Upon initial range of motion testing, the Veteran exhibited pain on forward flexion, extension, right and left lateral flexion, and right and left lateral rotation. The Veteran was noted to have guarding of the thoracolumbar spine resulting in abnormal gait or abnormal spinal contour. In addition, the Veteran was noted to have intervertebral disc syndrome of the thoracolumbar spine, although the examiner noted that the Veteran had not had any episodes of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. After considering the record in its entirety, including that discussed above, the Board finds that the preponderance of the evidence is against the assignment of an initial rating in excess of 40 percent. As reflected above, the clinical evidence of record clearly establishes that the Veteran’s low back disability is not productive of ankylosis. In this case, both of the VA medical examinations specifically found that ankylosis was not present. Moreover, the remaining lay and clinical evidence of record reflects that the Veteran’s low back disability is not productive on ankylosis; rather, he retains motion in his spine, albeit limited. In addition, the record shows that the Veteran has not exhibited symptoms more nearly approximating the entire spine fixed in flexion or extension, even during a flare-up or after repeated use over time. For example, during flare-ups, he remains able to flex to 10 degrees, and he does not exhibit symptoms such as difficulty walking due to a limited line of vision or breathing limited to diaphragmatic pressure on the costal margin of the abdomen. Given the Veteran’s diagnosis, the Board has also considered assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the preponderance of the evidence is against a finding that the Veteran has been 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. While the Board has noted the Veteran’s lay reports of being incapacitated at times by his disability, this self-description does not meet the criteria necessary for consideration of this alternative diagnostic criteria. In addition, the record shows that the Veteran does not exhibit associated neurological disabilities other than right and left lower extremity radiculopathy, for which service connection is already in effect. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for an initial rating in excess of 40 percent for his service-connected low back disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to an initial rating in excess of 20 percent for left elbow status post fracture with limitation of flexion. 3. Entitlement to an initial rating in excess of 20 percent for left elbow status post fracture with impairment of supination and pronation. Disabilities of the elbow and forearm are rated under Diagnostic Codes 5205 to 5213. The Veteran’s left elbow disability is currently assigned a 20 percent rating under Diagnostic Code 5206 for limitation of flexion and a separate 20 percent under Diagnostic Code 5213 for impairment of supination and pronation. The clinical evidence reflects that the Veteran’s left elbow disability affects his non-dominant arm. The Veteran does not contend otherwise. Therefore, the Board will discuss the ratings pertaining to the “minor” elbow and forearm. 38 C.F.R. § 4.71a. Under Diagnostic Code 5206, a 20 percent rating is assigned for flexion limited to 70 or 90 degrees, a 30 percent rating is assigned for flexion limited to 55 degrees, and a 40 percent rating is assigned for flexion limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5206. Under Diagnostic Code 5213, impairment of supination and pronation of an elbow in the minor extremity is evaluated as follows: a 30 percent rating is assigned for bone fusion with the hand fixed in supination or hyper pronation; a 20 percent rating is assigned for bone fusion with the hand fixed in full pronation, near the middle of the arc, or moderate pronation; a 20 percent rating is also assigned for pronation lost beyond the middle of the arc or last quarter of the arc (20 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5213. Normal forearm supination is from 0 degrees to 85 degrees. Normal forearm pronation is from 0 degrees to 80 degrees. 38 C.F.R. § 4.71, Plate I. 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 (musculoskeletal system) or § 4.73 (muscle injury); 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 [or 4.73] criteria.”). Turning to the evidence, private treatment records from June and July 2013 indicate that the Veteran performed range-of-motion exercises for his left elbow. He complained of discomfort and stiffness in July and August 2013, and discomfort at the extremes of his range of motion in September 2013. Prior to his February 2014 separation from service, the Veteran was afforded a VA examination in January 2014. Initial range of motion measurements revealed left elbow flexion to 145 degrees or greater with no objective evidence of painful motion. There was no limitation of extension and no impairment of supination or pronation on examination. It was noted that the Veteran did not have functional loss and/or functional impairment of the elbow and forearm and did not have localized tenderness or pain on palpation of joints/soft tissue of either elbow or forearm. Muscle strength testing was normal. No ankylosis was noted. The Veteran did not have flail joint, joint fracture and/or impairment of supination or pronation. The VA examiner reported that x-rays confirmed traumatic or degenerative arthritis. The Veteran denied flare-ups impacting the function of his elbow; further, the VA examiner opined that he believed that when there was a flare-up and there was repetitive motion or frequent use, there was no additional loss of range of motion or joint function due to pain, fatigue, or lack of endurance. In his January 2015 Notice of Disagreement, the Veteran stated that he experiences additional pain that shoots down his elbow and throughout his forearm. The Veteran indicated that he is unable to do some of the things he did prior to his left elbow fracture without experiencing elbow and arm pain. VA treatment records from May 2015 note that the Veteran occasionally gets elbow pain, possibly due to traumatic arthritis. At the October 2019 hearing before the undersigned Veterans Law Judge, the Veteran testified that the pain in his elbow varies, and that it bothers him especially when he lifts things and during motion. He also testified that he went to physical therapy for his left elbow disability and was told to wear a brace if he did physical activity. Pursuant to the Boards August 2020 remand, the Veteran was afforded a second VA examination in October 2020. It was noted that the Veteran was right-hand dominant. Initial range of motion testing revealed left elbow flexion to 130 degrees, with pain upon flexion, extension, forearm supination, and forearm pronation. There was pain on palpation. There was no additional functional loss or range of motion following repetitive-use testing. It was noted that pain, weakness, fatigability or incoordination significantly limited functional ability with flare-ups. Functional loss during a flare-up was recorded as left elbow flexion of 80 degrees or less. Muscle strength was 4/5 on left flexion and extension. There was no ankylosis. The Veteran also experienced impairment of supination in that he was limited to 50 degrees or less and 20 degrees or less during a flare-up. The Veteran had not undergone any elbow surgery. Amputation with prosthesis would not equally serve the Veteran. With respect to functional impact, it was noted that the Veteran could not perform full function with his left arm due to pain, fatigue, and lack of endurance. It was noted that the Veteran did not have flail joint, joint fracture, ununited fracture, or malaligned fracture. Based upon the record, the Board finds that the preponderance of the evidence is against the assignment of an initial rating in excess of 20 percent for left elbow status post fracture with limitation of flexion. As noted supra, upon examination in January 2014, the Veteran’s range of motion testing showed flexion to 145 degrees, with no additional functional loss. In October 2020, the Veteran’s initial range of motion testing revealed that his left elbow flexion was limited to 130 degrees and would be limited to 80 degrees during a flare-up. The evidence, however, has not shown, nor has the Veteran contended, that flexion of the left elbow is limited to 55 degrees or less, including during flare-ups, to meet the criteria for a rating in excess of 20 percent. Furthermore, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 20 percent for impairment of supination and pronation. The October 2020, VA examination report indicates that forearm supination was limited to 50 degrees, and would be further limited during flare-ups to 20 degrees. Forearm pronation was limited to 40 degrees, and would be further limited during flare-ups to 20 degrees. Neither the October 2020 VA examination report nor the other clinical and lay evidence of record demonstrates fixation of the left hand in supination or pronation, as would warrant the next higher evaluation of 30 percent. For these reasons, the Board finds that the preponderance of the evidence is against the assignment of initial ratings in excess of 20 percent for left elbow status post fracture with limitation of flexion and left elbow status post fracture with impairment of supination and pronation. Thus, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.D. Hobbs, 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.