Citation Nr: 21011565 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 09-42 208A DATE: March 2, 2021 ORDER Entitlement to a rating for chronic strain lumbosacral spine in excess of 10 percent prior to March 8, 2017, in excess of 20 percent from March 8, 2017 to August 13, 2018, and in excess of 40 percent thereafter is denied. FINDINGS OF FACT 1. Prior to March 8, 2017, the Veteran’s forward flexion and combined range of motion of the thoracolumbar spine exceeded 60 and 120 degrees respectively, and he did not have muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour. 2. From March 8, 2017 to August 13, 2018, the Veteran’s forward flexion of the thoracolumbar spine exceeded 30 degrees. 3. The Veteran has not had ankylosis of the thoracolumbar spine at any time during the appeal.   CONCLUSION OF LAW The criteria for a rating for chronic strain lumbosacral spine in excess of 10 percent prior to March 8, 2017, in excess of 20 percent from March 8, 2017 to August 13, 2018, and in excess of 40 percent thereafter are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army from October 1996 to October 2001. The appeal originates from an August 2008 decision of a Department of Veterans Affairs (VA) Regional Office. The Veteran appeared for a hearing before the undersigned in September 2016. The matter was remanded in January 2017 for a VA examination, which was obtained in March 2017 and August 2018, and again in September 2019 for an additional examination. The requested examination was obtained in December 2019. There has been substantial compliance with the Remand directives Entitlement to a rating for chronic strain lumbosacral spine in excess of 10 percent prior to March 8, 2017, in excess of 20 percent from March 8, 2017 to August 13, 2018, and in excess of 40 percent thereafter. Disability ratings are determined by comparing a veteran's present symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran’s claim. The Veteran’s thoracolumbar spine disability, diagnosed as chronic lumbosacral strain with lumbar spondylosis, is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, Diagnostic Code 5237 was not substantively changed. Changes to Diagnostic Code 5243, which pertains to intervertebral disc syndrome, arguably creates a more restrictive application as it now directs to assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root, [Emphasis added] and to otherwise assign diagnostic code 5242 for all other disc diagnoses. However, it is again noted that the General Rating Formula for Diseases and Injuries of the Spine and the Formula for Rating IVDS Based on Incapacitating Episodes did not change. Under the General Rating Formula for Diseases and Injuries of the Spine, 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, a 100 percent rating requires unfavorable ankylosis of the entire spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating requires unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 20 percent rating requires 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, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Based on the evidence, including the January 2008 examination, the Veteran is not entitled to a rating in excess of 10 percent for his back disability prior to March 8, 2017. In January 2008, he complained of pain, stiffness, and similar symptoms, but denied flareups. His forward flexion and combined range of motion was 70 and 160 degrees respectively (accounting for functional loss of 5 degrees due to pain on repetitive use), and he was not noted to have muscle spasm or guarding. Though treatment records for this period note muscle spasms, there is no indication that they resulted in an abnormal gait or abnormal spinal contour. The evidence simply does not show forward flexion of 60 degrees or less, combined range of motion of 120 degrees or less, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Neither is the Veteran entitled to a rating in excess of 20 percent from March 8, 2017 to August 13, 2018. The evidence does not show forward flexion of 30 degrees or less or ankylosis. In March 2017, forward flexion was to 60 degrees (at worst and accounting for passive testing) despite complaints of pain, tenderness, and similar symptoms. The March 2017 examiner specified that the Veteran did not have ankylosis. With respect to the period from August 13, 2018, a 40 percent rating is also not warranted. The Veteran had at least some range of motion at the August 2018 examination, and the examiner specified that he did not have ankylosis. The Board notes that the Veteran has specifically been found not to have IVDS on examination in March 2017, August 2018, and December 2019. Consideration is given to the December 2018 private medical report containing an assessment of “lumbar radiculitis secondary to degenerative disc disease” and slightly diminished deep tendon reflex in the bilateral lower extremities. The Board notes that reflex and sensory evaluations as well as straight-leg raising test have been negative at the examinations (with the exception of decreased sensation in the right lower extremity in January 2008, which did not produce a diagnosis of radiculopathy) with no indication of radicular signs or symptoms. The Board notes that neurological tests were administered by medical professionals in this case in March 2017, August 2018, and December 2019, and the testing revealed no radiculopathy. Given the tests performed are generally recognized in the medical community as diagnostic for neurological dysfunction, the results are afforded high probative value. In addition, the testing results are given more probative weight than the Veteran’s lay statements. While the Veteran may experience a feeling radiating pain into the lower extremities, if radiculopathy was present, as required for a separate compensable rating, the Board would expect that this would have been identified at least once during the multiple tests that were performed. The December 2019 examiner even specifically considered the private report in determining that the Veteran did not have radiculopathy. As such, the Board finds that a diagnosis of radiculopathy is not established.   The Court of Appeals for Veterans Claims has established that reports of flareups of symptomatology must be considered. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Guidance on how to evaluate flareups has not been particularly clear. However, the Board finds overall wisdom in Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Flareups must be quantifiable and result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flareup must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. With that in mind, consideration has been given to the Veteran’s reports of experiencing flareups at the March 2017, August 2018, and December 2019 examinations. The matter was remanded in September 2019 for an examination addressing whether flareups could be quantified in range of motion, which was obtained in December 2019. Based on review of the record, including the Veteran’s subjective complaints, examination findings, and treatment records, in conjunction with applied clinical knowledge and medical expertise, the examiner estimated the frequency and duration of flareups and provided specific estimates which served as part of the basis for the assignment of increased ratings that the Veteran is now in receipt of. See July 2020 Rating Decision. The December 2019 examiner did not provide a retrospective opinion concerning flareups for the entire period on appeal. However, the contemporaneous treatment records contain little, if any, findings pertaining to flareups much less information regarding the Veteran’s functional ability during a flareup or after repeated use over time. Therefore, the Board finds that the currently assigned staged ratings adequately contemplate the documented and reported functional limitation stemming from the back disability. See Mitchell, supra.   Accordingly, a rating for chronic strain lumbosacral spine in excess of 10 percent prior to March 8, 2017, in excess of 20 percent from March 8, 2017 to August 13, 2018, and in excess of 40 percent thereafter is not warranted. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Alhinnawi 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.