Citation Nr: 21012041 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 14-40 797 DATE: March 3, 2021 ORDER Entitlement to increased ratings for residuals of a back injury (formerly characterized as degenerative disc disease at L5/S1), currently rated as 20 percent disabling to November 21, 2014 and 40 percent disabling thereafter, is denied. FINDINGS OF FACT 1. For the appeal period prior to November 21, 2014, the Veteran’s residuals of a back injury manifested at worst, forward flexion of the thoracolumbar spine to 60 degrees even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups without interverbal disc disease (IVDS) requiring medically prescribed bedrest, associated objective neurological abnormalities other than right lower extremity radiculopathy or ankylosis. 2. For the appeal period beginning on November 21, 2014, the Veteran’s residuals of a back injury manifested as forward flexion that was limited to 30 degrees, at worst, medically prescribed bedrest, associated objective neurological abnormalities or ankylosis. CONCLUSION OF LAW The criteria for entitlement to increased ratings for residuals of a back injury, currently rated as 20 percent disabling prior to November 21, 2014, and 40 percent disabling thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from February 1984 to February 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a May 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. By way of background, the Agency of Original Jurisdiction (AOJ) first received the Veteran’s claim for an increased rating for his back disorder on June 25, 2010. See VA Form 21-0820 (rec’d June 25, 2010). The May 2011 rating decision awarded an increased rating to 20 percent effective June 25, 2010 (the receipt of the claim for increase), and the AOJ received correspondence in February 2012 that has been accepted as a Notice of Disagreement. See Third Party Correspondence (rec’d Feb. 13, 2012). During the period on appeal, the Veteran’s back disorder was awarded a staged rating increase of 40 percent effective November 21, 2014 (the date matching receipt of the Veteran’s VA Form 9 perfecting the appeal herein), but the 20 percent rating was continued prior to that date. See Rating Decision (May 3, 2017); VA Form 9 (rec’d Nov. 21, 2014). Because the benefits sought on appeal have not been granted in full, they remain on appeal as recharacterized here. See AB v. Brown, 6 Vet. App. 35, 38-9 (1993). The Veteran’s claim was most recently before the Board on September 10, 2020. While the Board issued a final determination as to the Veteran’s claim for a TDIU, the Board remanded the increased rating for the back injury claim to obtain VA medical records prior to November 2015 or else after May 2020. The Board determines that the Veteran has since been afforded substantial compliance with all previous remand directives, see Stegall v. West, 11 Vet. App. 268, 271 (1998); alternatively, any subsequent remand would unnecessarily impose additional burdens upon the Board with no reasonable possibility of any benefit flowing to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540 (1991). The Veteran was issued a Supplemental Statement of the Case (SSOC) on December 5, 2020. The Board accordingly reasserts jurisdiction. In short, there is no evidence to support ratings higher than for which he is already compensated for his back disorder—20 percent until November 21, 2014, and 40 percent thereafter. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). As such, and for the reasons more fully articulated below, the Veteran’s claim must be denied. 1. Entitlement to increased ratings for residuals of a back injury, formerly characterized as degenerative disc disease at L5/S1, currently rated as 20 percent disabling prior to November 21, 2014 and 40 percent disabling thereafter, is denied. Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects their ability to function under the ordinary conditions of daily life, including employment, by comparing their symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. While the Veteran’s entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court of Appeals for Veterans Claims (Court) has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. The Veteran’s service-connected back disorder is current evaluated as 20 percent disabling since June 25, 2010 to November 21, 2014, and then 40 percent disabling thereafter—all under Diagnostic Code 5242. 38 C.F.R. § 4.71a. VA regulations provide that spine disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or—if applicable—the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, under Diagnostic Code 5243, whichever would result in a higher rating. 38 C.F.R. § 4.71a. There is no competent or credible evidence that the Veteran has ever been diagnosed with IVDS; therefore, Diagnostic Code 5243 and the IVDS Rating Formula do not apply, and the Board shall devote no further time in analyzing the Veteran’s claim pursuant to them. As Diagnostic Code 5242 contains successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded. A higher rating cannot be granted based on a finding that the Veteran’s disability picture more nearly approximates the criteria for the next higher rating. However, reasonable doubt regarding the presence of a criterion may be resolved in the Veteran’s favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018). 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, provides the following: A 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is evidence of 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 assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or, unfavorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. The current spine rating criteria instructs the Board to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Note (1). The current spine rating criteria provide specific values for range of motion of the cervical and thoracolumbar (thoracic and lumbar) spine. For the thoracolumbar spine, normal range of motion on forward flexion is zero to 90 degrees; backwards extension, zero to 30 degrees; left and right lateral flexion, zero to 30 degrees; and, left and right lateral rotation, zero to 30 degrees. See 38 C.F.R. § 4.71a, Note (2) (see also Plate V). The Veteran has afforded four VA examinations during the period on appeal: October 2010, August 2012, June 2016, and April 2019. The Board previously determined that a remand was required to associate other medical records (aside from VA examinations) with the claims file. See Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). The AOJ obtained these medical records, in substantial compliance with the remand directives. See Stegall v. West, supra. In October 2010, the Veteran denied that his back disorder manifested in flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); VA Exam (Oct. 4, 2010), at Subjective Question No. 7. The Veteran’s forward flexion was observed to be as limited as 60 degrees upon repetitive use testing, see id. at Objective Question No. 7 (Physical Examination). As such, the Board concludes that a 20 percent rating was awarded on this basis effective the date of receipt of claim. In August 2012, the Veteran was examined once more. Once again, he denied that his back disorder manifested in flare-ups. See Sharp, supra; VA Exam (Aug. 9, 2012), at Question No. 3, Page 572. The Veteran’s range of motion upon both initial evaluation and repetitive use testing was as follows for the thoracolumbar spine: forward flexion, 70 degrees; forward extension, 20 degrees; right lateral flexion, 30 degrees; left lateral flexion, 30 degrees; right lateral rotation, 30 degrees; left lateral rotation, 30 degrees; combined range of motion, 210 degrees. See VA Exam (August 2012) at Questions Nos. 4-5 et seq. Even though there is some indication that the Veteran’s back disorder can manifest in “less movement than normal,” see id. at Question No. 6 et seq., there is simply no indication that his thoracolumbar spine is ever limited to 30 degrees in forward flexion (more than 50 percent of what had been observed at the examination). The Board notes that as the Veteran’s thoracolumbar spinal range of motion was measured at 70 degrees, this appears to preclude a finding that the Veteran suffers from ankylosis. Furthermore, there is also no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. See id. at Question No. 7. The examiner stated that the Veteran does not suffer from IVDS, see id. at Question No. 14. As a result, the Board concludes that there is no competent or credible evidence of record to suggest entitlement to a rating in excess of 20 percent at any point prior to November 21, 2014. Upon receipt of the Veteran’s VA Form 9, the Veteran was afforded another VA examination in June 2016. See generally Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Contrary to previous examinations, the Veteran indicated at this time that his back disorder is subject to flare-ups. See VA Exam (June 29, 2016), at Question No. 2b. The Veteran’s forward flexion of the thoracolumbar spine was measured at 15 degrees, see id. at Question No. 3a. Meanwhile, the examiner concluded that the Veteran does not have a diagnosis of IVDS, and his thoracolumbar spine disorder does not manifest in ankylosis of any kind. See id. at Questions Nos. 9 and 11. The Board concludes that the Veteran is not prejudiced by any failure to fully analyze the effects of flare-ups, because there is no higher rating available based upon further limitations of range of motion. See Sharp, supra. In other words, the only further increased ratings are only available in cases of ankylosis or IVDS, which do not apply to the Veteran. This examination postdates November 21, 2014, and it does not suggest any entitlement to a rating in excess of 40 percent at any time thereafter. Finally, the Veteran was most recently examined in April 2019. Just like in June 2016, the Veteran indicated at this time that his back disorder is subject to flare-ups. See VA Exam (April 5, 2019), at Question No. 2b. The Veteran’s forward flexion of the thoracolumbar spine was measured at 30 degrees, see id. at Question No. 3a. The Board notes in passing that while this appears to be less disabling than upon the then-most recent previous examination, this finding alone could still support entitlement to a 40 percent rating. Once more, the examiner concluded that the Veteran does not have a diagnosis of IVDS, and his thoracolumbar spine disorder does not manifest in ankylosis of any kind. See id. at Questions Nos. 9 and 11. The Board concludes that the Veteran is not prejudiced by any failure to fully analyze the effects of flare-ups, because there is no higher rating available based upon further limitations of range of motion. See Sharp, supra. In other words, the only further increased ratings are only available in cases of ankylosis or IVDS, which do not apply to the Veteran. This examination also fails to suggest any entitlement to a rating in excess of 40 percent. The Veteran has credibly reported that his thoracolumbar spine disorder has increased in severity throughout the period on appeal. The Board does not doubt the credibility of the Veteran and does not question the veracity of those statements. In fact, the Veteran’s statements are vindicated by virtue of his staged increased rating upon the receipt of his claim, and another staged rating increase during the appellate period. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. 38 C.F.R. § 3.159; Layno v. Brown, 6 Vet. App. 465 (1994). Ultimately, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to” and a mere conclusory generalized lay statement that service event or illness caused the claimant’s current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274 (2010). Simply stated, there is no competent or credible evidence of record to suggest that the Veteran’s thoracolumbar spine has ever been limited to 30 degrees of forward flexion or less at any time prior to November 21, 2014, and the evidence of record also precludes a finding that he has ever suffered from ankylosis of the spine or IVDS. 38 C.F.R. § 4.71a, Diagnostic Code 5242. As the Veteran has never been diagnosed with IVDS, Diagnostic Code 5243 does not apply and cannot be considered. In addition to considering the orthopedic manifestations of a back disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. However, the Veteran has not alleged, and the evidence does not show, that he has radiculopathy of the lower extremities, bladder impairment or bowel impairment as a result of his service-connected back injury. Therefore, the Board finds that, at no time during the appeal period, has the Veteran’s service-connected back injury resulted in neurological impairment. Finally, the Board has considered the effects of repeated use over time and flare-ups along with the adequacy of the VA examinations in light of the Court’s holdings in Correia and Sharp. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this case, the VA examiners did not test the opposite joint; however, the spine does not have an opposite joint. As noted previously, the Veteran explicitly denied experiencing flare-ups of back pain in the October 2010 and August 2012 VA examinations. Similarly, Sharp is not for application at any time either before or after November 21, 2014 because notwithstanding the Veteran’s denial of flare-ups at all times prior to November 21, 2014, Sharp, supra pertains to the adequacy of examinations as they relate to range of motion findings but range of motion findings would not be relevant after November 21, 2014 because they cannot result in a higher rating. Moreover, while VA must in some circumstances consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination, DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); 38 C.F.R. §§ 4.40, 4.45, such considerations do not apply where, as here as of November 21, 2014, the Veteran is receiving the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Ultimately, the Veteran’s claim was previously remanded so that the AOJ could associate outstanding VA treatment records. The Board concludes that these records have since been duly associated with the claims file. See VA Treatment Records (rec’d Sept. 15, 2020 ). The Board ultimately concludes that there is no evidence of record to suggest forward flexion limited to 30 degrees or less at any time prior to November 21, 2014, or else manifestations of ankylosis or IVDS at any time. See 38 U.S.C. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required pursuant to Stegall). Alternatively, the Board concludes that among the four VA examinations of record as recounted above and the Veteran’s medical history as available to the Board for appellate review, any perceived failure to afford the Veteran substantial compliance with all previous remand directives would not reasonably raise a likelihood of an entitlement to an increased rating. Prior to November 21, 2014, the Veteran denied flare-ups and forward flexion was measured as limited to 60 degrees at its worst. There is no evidence suggesting any possible entitlement to higher ratings under Sharp, DeLuca, Mitchell, Correia, or otherwise as pertaining to range of motion. Then, effective November 21, 2014, the Veteran has received a maximum schedular rating for the thoracolumbar spine as predicated upon limitation of range of motion—in this case, 40 percent. Only findings of IVDS or ankylosis could yield ratings in excess of 40 percent. As a result, any perceived failure of substantial compliance would be predicated on a remand directive upon which there is no basis for remand. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.71a, Diagnostic Codes 5242. See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law, not the evidence, is dispositive, the appeal should be terminated for lack of legal merit or entitlement). Under these circumstances, further development would unnecessarily impose additional burdens upon the Board with no reasonable possibility of any benefit flowing to the Veteran. Soyini v. Derwinski, 1 Vet. App. 540 (1991); Stegall, supra. But cf. Snuffer, supra; Allday, supra. Given the above, with respect to the service-connected lumbar spine disability, further examination or opinion is unnecessary. See also Sabonis v. Brown, supra (holding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). In assessing the severity of the Veteran’s residuals of his thoracolumbar spine disorder without ankylosis or IVDS, the Board has considered the competent lay assertions regarding symptoms experienced and observed. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support higher ratings as the required medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal. The Board has considered whether further staged rating under Hart, supra is appropriate; however, the Veteran is already in receipt of a staged rating to reflect adequate compensation throughout the period on appeal. Therefore, assigning any further staged ratings beyond as already assigned is not warranted. The Veteran and/or his agent has not raised any other issues, nor have any other issues been reasonably raised by the record in regard to the increased rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017). (Continued on the next page)   For the foregoing reasons, the Veteran’s thoracolumbar spine disorder is already afforded a rating of 20 percent from the beginning of the period on appeal (June 25, 2010) until prior to November 21, 2014, and a rating of 40 percent thereafter. A rating in excess of the above is not warranted. As the preponderance of the evidence reflects the symptoms of the do not more nearly approximate the criteria for a rating higher than 20 percent at any point prior to November 21, 2014, or else higher than 40 percent at any time on appeal, the benefit of the doubt doctrine is not for application in this regard. The claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael B. Engle, 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.