Citation Nr: 21011708 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 14-02 888 DATE: March 2, 2021 ORDER An initial rating in excess of 10 percent for a back disorder prior to November 1, 2016, and in excess of 20 percent, thereafter, is denied. FINDING OF FACT Prior to November 1, 2016, the Veteran’s lumbar spine range of motion was greater than 60 degrees of flexion and 120 degrees of combined range of motion; after November 1, 2016, the Veteran’s lumbar spine range of motion was greater than 30 degrees of flexion, with no evidence of ankylosis. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent for a back disorder prior to November 1, 2016, and in excess of 20 percent thereafter have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.71a, Diagnostic Codes 5237-5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 2011 to July 2012 and had periods of active duty for training (ACDUTRA) from August 2007 to December 2007 and from February 2016 to June 2016. The case is on appeal of an October 2012 rating decision issued by the Regional office (RO) of the Department of Veterans’ Affairs (VA). In a November 2017 decision, the Board of Veterans’ Appeals (Board) denied higher initial ratings for the lumbar spine disability, as well as for right shoulder and left knee disabilities. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2018 order, the Court remanded the appeal with respect to the lumbar spine disability to the Board, based on a July 2018 joint motion for remand (JMR), of particular interest was an examination to address the Veteran’s flare ups. The remaining issues were dismissed. The Veteran was assigned a total disability rating after surgery for a brief period, this total rating is not to be disturbed. The Board notes that a March 2018 rating decision reflects that the lumbar spine disability was recharacterized from lumbar strain to degenerative disc disease (DDD) with intervertebral disc syndrome (IVDS). As such, the issue is recharacterized. It should also be noted that, during the course of this appeal, the schedular criteria for evaluating the back disability have been amended. Specifically, the criteria pertaining to DDD under 38 C.F.R. § 4.71a, DC 5237, was amended effective February 7, 2021. See 85 Fed. Reg. 76,453 (November 30, 2020). Where a law or regulation changes during the pendency of a claim for increased rating, the Board should first determine whether application of the revised version would produce retroactive results. In particular, a new rule may not extinguish any rights or benefits the claimant had prior to enactment of the new rule. VAOPGCPREC 07-03 (November 19, 2003). However, if the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C.A. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991), overruled in part, Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). As the Veteran’s claim was received prior to the effective date of the regulation changes, the Board must consider the Veteran’s spine disability under both the old and the revised rating criteria and must apply the old rating criteria if the result is more favorable to the Veteran. Id. However, in this case, the change in the regulations do not affect the Veteran’s appeal. Finally, the evidence reflects that the Veteran underwent surgery to her lumbar spine, and was in receipt of a 100 percent disability rating for her back disorder under 38 C.F.R. § 4.30 for the period from April 5 to July 1, 2017. As such, this period on appeal is not considered. 1. Entitlement to an increased rating for a back disorder The Veteran is seeking increased staged ratings for her service-connected back disability. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. In the case of an initial rating, the entire evidentiary record from the time of a veteran’s claim for service connection to the present is of importance in determining the proper evaluation of disability. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Prior to November 1, 2016 The Veteran’s back disability has been assigned a 10 percent rating prior to November 1, 2016, under 38 C.F.R. § 4.71a, DC 5237 (addressing the lumbar spine). In order to warrant a rating in excess of 10 percent, the evidence must show: • Forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees (20 percent); • A combined range of motion of the thoracolumbar spine not greater than 120 degrees (20 percent); • Muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, revered lordosis, or abnormal kyphosis (20 percent); • Intervertebral disc syndrome (IVDS) with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months (20 percent); or, • X-ray evidence of arthritis with the involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations (20 percent under DC 5003). 38 C.F.R. § 4.71a, DC 5237. Based on the evidence of record, a rating in excess of 10 percent is not warranted prior November 1, 2016. As an initial matter, at an evaluation in December 2011, the Veteran complained of lower back pain with spasms in the lower back after prolonged sitting. Based on the level of her activity, her pain reached a level of 6 out of 10. Upon examination, she demonstrated 150 degrees of flexion an d30 degrees of extension with no vertebral tenderness. Next, at a VA examination in October 2012, the Veteran reported constant dull back pain, and that she experiences flare ups that typically last an hour. On examination she exhibited 70 degrees, and her combined range of motion was 190 degrees. No evidence of muscle spasms, guarding, or weakness severe enough to cause abnormal gait or spinal contour were observed. She did not have a need for an assistive device or evidence of IVDS. There were no signs of radiculopathy. The Board does note that the Veteran was observed to experience pain at 20 degrees of flexion. However, there is no indication that this pain actually causes functional limitation to an extent necessary for an increased rating. Indeed, less than one year earlier, she exhibited a range of motion almost twice that of what was shown at this examination. The fact that her actual flexion was so much more than when her pain began supports this point, as it is reasonable to expect that the difference between the two values would be much closer together if the pain was truly limiting. Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2011). As such, a rating in excess of 10 percent is not for application prior to November 1, 2016. Since November 1, 2016 As of November 1, 2016, the Veteran has been in receipt of a 20 percent rating for her back disorder under 38 C.F.R. § 4.71a, DC 5237. A rating in excess of 20 percent is warranted for a lumbar spine disability when the evidence shows: • Forward flexion of the thoracolumbar spine to 30 degrees or less (40 percent); • Favorable ankylosis of the entire thoracolumbar spine (40 percent); or, • Intervertebral disc syndrome with incapacitating episodes having a total duration of at 4 weeks but less than 6 weeks during the past 12 months (40 percent). 38 C.F.R. § 4.71a, DC 5242. Based on the evidence of record, a rating in excess of 20 percent is not warranted during this period. Specifically, at a November 2016 VA examination, the Veteran reported chronic daily pain. She stated that prolonged sitting, walking, or running increases her back pain. Additionally, she reported flare ups. On examination, the examiner reported that the Veteran’s forward flexion was 50 degrees or greater with pain noted on motion. While the examiner indicated that the Veteran had IVDS, there was no evidence of ankylosis or incapacitating episodes that occurred at least 4 weeks out of the year. In a January 2018, the Veteran provided a disability benefits questionnaire, where reported pain and flare-ups. The Veteran’s forward flexion was 60 degrees. Radiculopathy was showed during the examination. The examiner did not show ankylosis but did reflect IVDS with incapacitating episodes at least two weeks but less than four weeks. However, these incapacitating episodes are inconsistent with the record, particularly with the Veteran not alleging an inability to work. At her most recent VA examination in October 2019, the Veteran reported intermittent pain radiating from the right left buttock to the calf bilaterally, but she no longer reported flare ups. In the Board’s view, it makes sense that her surgery in 2017 may have improved her symptoms, such that she no longer experiences flare ups. She further reports limitations with lifting weight. The Veteran’s range of motion was normal, with 90 degrees of flexion, which also could be reflective of the surgery. There was pain noted on exam, but it did not result in functional loss. There was no evidence of ankylosis or IVDS. Additionally, there was no evidence in the Veteran’s treatment records to support a rating in excess of 20 percent based upon limitation of motion or incapacitating episodes. Therefore, a rating in excess of 20 percent is not for application for this period. When considering these ratings, the Board has considered the impact of functional loss in the Veteran’s back due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 206-07 (1995). In this case, the Veteran has complained that she is limited in performing activities of daily living due to fatigue, pain, and weakness. Specifically, that her pain limits activities such as her ability to walk, lift, bend, and sit. Moreover, she has indicated that her pain and flare-ups cause additional functional loss. However, while the Veteran experiences the symptoms, overall, it does not appear that these symptoms result in additional and significant functional loss, and her complaints are adequately contemplated in the ratings she currently receives. See Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2011) (pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance). Here, during the October 2019 VA examination, the Veteran reported that her flare ups had subsided. Furthermore, none of the previous examiners in 2012 or 2016 found additional loss of motion or functioning after flare-ups, repetitive testing, or weight bearing that would warrant a higher rating. Next, when evaluating the extent of the Veteran’s back disability, the Board is required to consider whether a separate evaluation is warranted for any associated neurological abnormality including, but not limited to, bowel or bladder impairment, neurological impairment in the extremities or other such disorders, which are to be evaluated under the appropriate diagnostic code. See 38 C.F.R. § 4.71(a). Here, the Veteran is service-connected and separately rated for bilateral lower extremity nerve disorders and has not appealed such. Further, with respect to any other neurological abnormalities, the medical evidence does not document any other associated neurological impairments related to her lumbar spine disability during the period on appeal. Specifically, the Veteran’s 2012, 2016, or 2019 VA examinations did not reveal any other neurological impairments, including radiculopathy to her other extremities, related to her service-connected back disability that would warrant a separate rating, nor has the Veteran asserted otherwise. In considering the appropriate disability ratings, the Board has also considered the statements from the Veteran that her service-connected disorders are worse than the ratings she currently receives, including that her back disorder causes impairment with her activities of daily living. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to her through her senses, she is not competent to identify a specific level of disability of her service-connected disabilities according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s lumbar spine disorder has been provided by the medical personnel who have examined her during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Therefore, after a complete review of the record, an increased rating for a back disorder is not warranted. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Billinger, Associate Counsel