Citation Nr: 21012072 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 10-09 475 DATE: March 3, 2021 ORDER A disability rating in excess of 10 percent for a lumbar spine disability for the period prior to March 15, 2016 is denied. A disability rating in excess of 20 percent for a lumbar spine disability for the period from March 15, 2016, forward, is denied. REMANDED Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left ankle disability is remanded. FINDINGS OF FACT 1. Prior to March 15, 2016, the Veteran’s low back disability was manifested by forward flexion of greater than 60 degrees; combined range of motion of the thoracolumbar spine of greater than 120 degrees but not greater than 235 degrees; but not muscles spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; or incapacitating episodes of at least two weeks, but less than four weeks in twelve months. 2. After March 15, 2016, the Veteran’s low back disability was manifested by forward flexion greater than 30 degrees but not greater than 60 degrees; but not combined range of motion of the thoracolumbar spine under 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; or incapacitating episodes of at least four weeks but less than 6 weeks during 12 months. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating exceeding 10 percent for a lumbar spine disability prior to March 15, 2016 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.40, 4.71a, Diagnostic Codes 5237, 5242, 5243. 2. The criteria for entitlement to a disability rating exceeding 20 percent for a lumbar spine disability from March 15, 2016 have not been met. 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.40, 4.71a, Diagnostic Codes 5237, 5242, 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1974 to April 1975. This appeal comes to the Board of Veterans’ Appeals (Board) from a January 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in May 2012, and the Board remanded these matters to the Agency of Original Jurisdiction (AOJ) in October 2012 for additional development. The Board issued a decision in February 2015 denying service connection for a bilateral ankle disability and denying an increased initial rating for chronic low back strain. In October 2016, the United States Court of Appeals for Veterans Claims (Court) affirmed the Board’s February 2015 decision. The Veteran appealed to the United States Court of Appeals for the Federal Circuit (Federal Circuit). Pursuant to an August 2017 Federal Circuit Settlement Agreement, the appeal was dismissed with prejudice for the matters to be returned to the RO for further development. The settlement agreement provides that the Veteran must be afforded a relevant medical examination by an orthopedic specialist. In September 2018, the Board remanded these matters to the AOJ to consider additional evidence in the first instance and readjudicate the claims after completing necessary development. The matter was returned to the Board but was remanded once more in an April 2020 decision in pursuit of new VA examinations. With the completion of those examinations, the matter is before the Board once more. Increased Rating, Generally Disability evaluations (ratings) are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the 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. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 38 C.F.R. §§ 4.1, 4.2, 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. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Under the rating schedule, the Veteran’s lumbar spine disability can be evaluated in one of two ways. It can either be evaluated according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula) or according to the Formula for Rating IVDS Based on Incapacitating Episodes (Incapacitating Episodes Formula). See 38 C.F.R. § 4.71a, DC 5235-5243. When rating according to the General Formula, any associated objective neurologic abnormalities are rated separately under their respective diagnostic codes. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Under the General Formula, a 10 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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. Id. A 20 percent evaluation is warranted when 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. Id. A 30 percent evaluation is warranted when forward flexion of the cervical spine is 15 degrees or less; or, favorable ankylosis of the entire spine. Id. A 40 percent evaluation is warranted when there is unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent evaluation is warranted where there is unfavorable ankylosis of the entire spine (meaning when considering the adjacent cervical segment as well). See Id. For VA compensation purposes, unfavorable ankylosis is 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See Id., Note (5). Ankylosis is defined as immobility and consolidation of a joint due to disease, injury or surgical procedures. See Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). The General Formula applies for rating purposes 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. Id. Any associated objective neurologic abnormalities must be rated separately. Id., at Note (1). For the purposes of rating, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Id., at Note (2). Thus, the normal combined range of motion for the thoracolumbar spine is 240 degrees. Id. The Veteran’s lumbar spine disability can also be rated using the Incapacitating Episodes Formula. See 38 C.F.R. § 4.71a, DC 5243. This formula allows for a rating of 20 percent if there have been incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months; a 40 percent evaluation was assigned for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past twelve months; and a 60 percent evaluation was assigned for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243, Incapacitating Episodes Formula. For the purposes of this formula, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). 1. Entitlement to a disability rating exceeding 10 percent for a lumbar spine disability prior to March 15, 2016. The Veteran contends that his lumbar spine disability prior to March 15, 2016 warrants a higher rating than the 10 percent assigned. The Veteran was afforded a VA examination of the spine in December 2008. Physical examination of the lumbar spine revealed forward flexion to 90 degrees, extension to 30 degrees, lateral flexion to 30 degrees in both directions, and lateral rotation in both directions. There was no abnormal spinal curvature, muscle spasms, atrophy, or muscle strength testing. There was tenderness in the mid-lumbar area. Range of motion testing produced pain with all motion tested, but no fatigue, weakness, lack of endurance, or incoordination was recorded. Noted were the Veteran’s difficulties occupationally, recreationally, and with his daily activities. In June 2012, the Veteran’s treating physician indicated that his low back disability causes a moderate degree of pain. He indicated that the Veteran should not perform more than 30 percent of his job duties (lifting, walking, etc.). The Veteran was afforded another VA examination of the spine in February 2013, during which he was diagnosed as having degeneration of the lumbar and lumbosacral discs, displacement of lumbosacral discs without myelopathy, and mild spinal stenosis. Range of motion testing of the lumbar spine revealed forward flexion to 70 degrees, with pain beginning at 70 degrees; full extension to 30 degrees without objective evidence of painful motion; bilateral flexion to 30 degrees in both directions without objective evidence of painful motion; and right and left lateral rotation to 20 degrees without objective evidence of painful motion. No range of motion was lost on repeated use. There was no evidence of muscle spasm, tenderness to palpation, decreased muscle strength, or abnormal reflexes. There was no evidence of IVDS, nor did the Veteran experience incapacitating episodes due to his low back disability. From this examination, the clinician opined that the Veteran’s low back disability did not impact the Veteran’s ability to work. The examiner specifically found that it is less likely than not that the Veteran’s “lumbar spine conditions renders him unemployable in a physical or [sedentary] capacity at this time.” The examiner also noted that the Veteran worked at the local fairgrounds until July 2012 and worked at his own business. Based on a careful review of the evidence of record, the Board finds that a disability rating exceeding 10 percent for a lumbar spine disability prior to March 15, 2016 is not warranted. The evidence of record does not show the Veteran’s lumbar disability was manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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. Absence of this evidence precludes the Veteran from meeting the rating criteria for a higher, 20 percent rating. The Board has considered whether a higher evaluation is warranted pursuant to the criteria for rating IVDS. There is no evidence showing that bed rest has been prescribed by a physician. As such, a higher rating pursuant to the criteria for evaluating intervertebral disc syndrome is not for application prior to March 15, 2016. The Board accepts that the Veteran has functional impairment and pain. See DeLuca. The Board also finds the Veteran’s own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of limitation of motion nor the function equivalent of limitation of flexion required to warrant the next higher evaluation. As such, the Board finds that the assigned evaluation of 10 percent prior to March 15, 2016 is appropriate for the Veteran’s back disability. 2. Entitlement to a disability rating exceeding 20 percent for a lumbar spine disability from March 15, 2016. The Veteran contends that his lumbar spine disability from March 15, 2016 warrants a higher rating than the 20 percent assigned. The Veteran was afforded a VA examination of the spine in April 2016, during which he was diagnosed as having lumbosacral strain, degenerative arthritis of the spine, IVDS, and lumbar spine disc bulges at L4/L5 and L3/L4. Range of motion testing of the lumbar spine revealed a forward flexion to 40 degrees; full extension to 30 degrees; right and left lateral flexion to 20 degrees; and right and left lateral rotation ot 30 degrees. Pain was noted during forward flexion, full extension, and right lateral flexion. On repeated use, no loss in range of motion was observed. Tenderness of palpation was noted but there was no evidence of muscle spasm, abnormal reflexes, ankylosis, or incapacitating episodes. Decreased muscle strength was identified in the left ankle plantar flexion. Flare-ups were reported by the Veteran, indicating they would occur around 20 times a year. In those instances, he would experience sharp pain and would need to stay in bed for two weeks during each flare-up. No range of motion limitations during flare-ups were estimated. The Veteran was afforded another VA examination of the spine in April 2018, during which he was diagnosed as having lumbar degenerative disc disease and IVDS. Range of motion testing of the lumbar spine revealed forward flexion to 65 degrees; full extension to 20 degrees; right lateral flexion to 15 degrees; left lateral flexion to 20 degrees; right lateral rotation to 15 degrees; and left lateral rotation to 20 degrees. Pain was noted during each range of motion test. Range of motion was lost on repeated use in the motions of full extension and right lateral rotation. On repeated use, the Veteran’s full extension was to 15 degrees and the Veteran’s right lateral rotation was to 10 degrees. There was no evidence of muscle spasm, tenderness to palpation, ankylosis, incapacitating episodes, or abnormal reflexes. Decreased muscle strength was noted in the Veteran’s left great toe extension. Flare-ups were reported by the Veteran, indicating he would experience sharp pain at their onset but any range of motion limitations during a flare-up could not be estimated by the Veteran. The Veteran’s wife submitted a statement regarding the Veteran’s lumbar spine disability in May 2018. The Veteran’s wife notes the Veteran had been “sidelined” on many occasions due to his neck and back problems. She stated his disabilities made him “basically unemployable” but noted he was making an income being self-employed. The Veteran was afforded another VA examination in September 2020, during which he was diagnosed with chronic low back strain with degenerative changes and broad-based disc bulges Range of motion testing of the lumbar spine revealed a forward flexion to 60 degrees; full extension to 15 degrees; right and left lateral flexion to 15 degrees; and right and left lateral rotation to 20 degrees. Pain was noted during forward flexion, full extension, left lateral flexion, and right lateral rotation. On repeated use, no loss in range of motion was observed. There was no evidence of tenderness on palpation, decreased muscle strength or ankylosis. There was no evidence of IVDS, nor did the Veteran experience incapacitating episodes due to his low back disability. The clinician noted muscle spasm that did not result in abnormal gait or abnormal spinal contour. The Veteran reported flare-ups, saying the happened “very often” and that they would last two to three days. The flare-ups would be precipitated by standing from a sitting position or walking and could be alleviated through rest, ice, and heat. Range of motion during flare-ups was estimated as forward flexion to 50 degrees; full extension to 10 degrees; left and right lateral flexion to 10 degrees; and left and right lateral rotation to 15 degrees. Based on a careful review of the evidence of record, the Board finds that a disability rating exceeding 20 percent for a lumbar spine disability from March 15, 2016 is not warranted. The evidence of record does not show the Veteran’s lumbar disability was manifested by forward flexion of the thoracolumbar spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. Absent this evidence, the Veteran cannot meet the rating criteria for a 30 percent rating. The Board has considered whether a higher evaluation is warranted pursuant to the criteria for rating IVDS. There is no evidence showing incapacitating episodes. As such, a higher rating pursuant to the criteria for evaluating intervertebral disc syndrome is not for application from March 15, 2016. The Board accepts that the Veteran has functional impairment and pain. See DeLuca. The Board also finds the Veteran’s own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of limitation of motion nor the function equivalent of limitation of flexion required to warrant the next higher evaluation. As such, the Board finds that the assigned evaluation of 20 percent after March 15, 2016 is appropriate for the Veteran’s back disability. REASONS FOR REMAND 1. Entitlement to service connection for a right ankle disability is remanded. 2. Entitlement to service connection for a left ankle disability is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding these issues, and another remand is required.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  In the April 2020 remand, the Board instructed the RO to acquire an opinion whether any of the Veteran’s current ankle disabilities were at least as likely as not worsened beyond normal progression by the Veteran’s service-connected disability and associated radiculopathy to include any changes in the Veteran’s gait. The VA opinion provided stated that the claimed condition clearly and unmistakably preexisted service and was clearly and unmistakably not aggravated or caused by the Veteran’s lower back condition. The opinion requested by the Board was as to aggravation of the current disability by the Veteran’s lower back condition, not in regard to a preexisting injury. Additionally, the rationale fails to address possible connection between the Veteran’s ankle disabilities and his service-connected back disability through a change of gait caused by the back disability. Furthermore, the opinion provided relies on an absence of service or post-service treatment records in support of the finding. It is well-settled that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Barr v. Nicholson, 21 Vet. App. 303 (2007). For the above deficiencies, the Board finds a remand is warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an orthopedic specialist of the Veteran’s ankles. The AOJ should ensure that the clinician follows these directives: (a.) The VA clinician should identify all current disabilities associated with the Veteran’s ankles to include bilateral collateral ligament sprain and any functional limitations due to the Veteran’s reports of pain and instability. (b.) For each current disability identified, the examiner should opine whether the disability was at least as likely as not (50 percent or greater probability) caused by the Veteran’s military service. The clinician should explain why or why not. (c.) For each current disability identified, the examiner should opine whether the disability was at least as likely as not proximately caused or worsened beyond normal progression (aggravated temporarily or permanently) by the Veteran’s service-connected lumbar spine disability and associated radiculopathy to include any changes in the Veteran’s gait. 2. All opinions must be thoroughly explained and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The clinician is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the clinician’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.  It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records.  After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran ad his representative a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration.   C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Lee Feldman, Attorney Advisor 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.