Citation Nr: 21010931 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 17-60 655 DATE: February 26, 2021 ORDER A rating higher than 20 percent for back disability is denied. FINDING OF FACT The Veteran’s back disability is not more nearly manifest by forward flexion of the thoracolumbar spine to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes of intervertebral disc syndrome (IVDS). CONCLUSION OF LAW The criteria for a rating higher than 20 percent for back disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5235 to 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1981 to June 1984. The record shows that he has a 100 percent VA disability rating based on unemployability effective from November 19, 2014. This case comes before the Board of Veteran’s Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a May 2019 hearing before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The Veteran proceeded without representation at that time and the record showed that he had revoked representation in this matter. See Power of Attorney (POA) Coversheet (April 2019). In September 2019, the Board remanded the appeal. Again, in March 2020, the Board remanded the issues of entitlement to a rating in excess of 20 percent for back disability along with entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). The Board finds that there has been substantial compliance with the Board’s prior remand directives. Dyment v. West, 13 Vet. App. 141 (1999); Wood v. Derwinski, 1 Vet. App. 190 (1991); Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (If a veteran wishes help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining the putative evidence.). It is noted that the RO requested the Veteran return a completed VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs (VA), and VA Form 21-4142a, General Release for Medical Provider Information to the Department of Veterans Affairs (VA), in April 2020 and June 2020. However, to date, no response has been received. As to the TDIU claim, the record shows that a December 2020 rating decision granted TDIU from November 19, 2014. As this represents a full grant of the benefit sought on appeal, there remains no controversy for the Board to consider a to this matter. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). It is noted that the effective date for a TDIU cannot be earlier than the effective date of service connection for the disability or disabilities upon which the TDIU award was based. See Delrio v. Wilkie, 32 Vet. App. 232 (2019).   Evaluations Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 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 their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A disability may require re-evaluation in accordance with changes in a veteran’s condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Entitlement to a rating higher than 20 percent for back disability. The Veteran contends that his back disability is gradually getting worse and he experienced pain when walking and carrying additional weight, such as grocery bags. See Hearing Transcript (May 2019). The Veteran’s back disability is rated under 38 C.F.R. § 4.71a, DC 5237. 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 rating 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. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See Note 1. 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). The Board concludes that the preponderance of the evidence is against a rating in excess of 20 percent for back disability. Neither the lay nor the medical evidence more nearly reflects the functional equivalent of forward flexion limited to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine; or prescribed bed rest by a physician for any duration. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, General Rating Formula, DCs 5235-5243. Both January 2019 and November 2020 VA examination reports reflect significantly better range of motion than that required for the next higher evaluation under the VA rating schedule. Indeed, forward flexion was to 85 degrees at the January 2019 VA examination and it was to 60 degrees on the November 2020 examination. There was no additional loss of motion following repetitive use testing. There was no ankylosis of the thoracolumbar spine. There was no IVSD requiring bed rest prescribed by a physician. While the January 2019 VA examination range of motion testing was not conducted during a flare up, which showed flexion to 85 degrees, the November 2020 VA examination report shows that it was conducted during a flare-up of back symptoms and that flexion was limited to 60 degrees during a flare-up. Similarly, VA and private treatment records associated with the claims file do not show flexion more nearly limited to 30 degrees or less or ankylosis, favorable or unfavorable, involving the thoracolumbar spine. The November 2020 VA examination report noted that pain, weakness, fatigability or incoordination does not significantly limit the Veteran’s functional ability with flare ups. The Board generally accepts that Veteran’s statements and testimony that he experiences back pain and it can be bothered by carrying items like groceries. For example, he stated at his January 2019 VA examination that back pain symptoms made it difficult to stand, walk, or sit for a short amount of time. However, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Both the lay and medical evidence are probative in this case. Although the Veteran believes that he meets the criteria for a higher disability rating, his complaints along with the medical findings do not meet the schedular requirements for a schedular disability rating. In this case, neither the lay nor the medical evidence reflects the functional equivalent of flexion more nearly limited to 30 degrees, to include during a flare-up. Though private treatment records may better support the Veteran’s contentions, he has neither provided those complete records nor given VA permission to obtain those on his behalf. See Wood, supra. On balance, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for back disability. It is noted that the Veteran is separately rated for right lower extremity radiculopathy, which is not before the Board; and there is not competent, credible evidence showing any other associated neurological abnormality associated. Accordingly, the claim is denied. 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. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Edwards 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.