Citation Nr: 21012453 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 17-19 775 DATE: March 4, 2021 ORDER Entitlement to a rating of 40 percent, but no higher, prior to June 25, 2013 and from August 1, 2013 to September 22, 2020, for lumbar strain with degenerative joint disease (DJD) and interverbal disc syndrome (IVDS) is granted. Entitlement to a rating in excess of 40 percent from September 23, 2020 for lumbar strain with degenerative joint disease and interverbal disc syndrome is denied. FINDINGS OF FACT 1. After resolving reasonable doubt in his favor, the Veteran’s lumbar spine DJD manifests in limited range or motion less than 30 degrees and favorable ankylosis. 2. Unfavorable ankylosis of the entire thoracolumbar spine nor incapacitating episodes having a total duration of at least six weeks during the past 12 months have not been shown at any point during the appeal period. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating of 40 percent, but no higher, prior to June 25, 2013 and from August 1, 2013 to September 22, 2020 for lumbar strain with DJD and IVDS have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (Code) 5243 (2020). 2. The criteria for entitlement to a rating in excess of 40 percent, but no higher, from September 23, 2020 for lumbar strain with DJD and IVDS have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (Code) 5243 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1958 to February 1961 and from April 1961 to May 1978. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a January 2014 rating decision by the Department of Veterans Affairs (VA). In March 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. In May 2018, July 2019, and July 2020 the Board remanded this matter for further development. The Board notes the Veteran’s lumbar strain with DJD and IVDS was temporarily rated at 100 percent from June 25, 2013 to July 31, 2013 because of his surgery which required a recovery period. As such, that period of time is excluded, and the issue has been characterized accordingly. Entitlement to a rating in excess of 20 percent prior to June 25, 2013 and from August 1, 2013 to September 22, 2020, and in excess of 40 percent thereafter for lumbar strain with degenerative joint disease and interverbal disc syndrome. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In any claim for an increased rating, “staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. The Veteran is currently rated pursuant to Code 5243 and the General Rating Formula for Diseases and Injuries of the Spine (General Formula). Under the General Formula, with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 40 percent rating is warranted for flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. “Unfavorable ankylosis” is defined, in pertinent part, as “a condition in which...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.” Id., Note (5). Any associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, must be evaluated separately, under the appropriate Code. Id., Note (1). Under the formula for rating IVDS based on incapacitating episodes, a 40 percent rating is warranted for incapacitating episodes if such episodes had a total duration of at least four weeks but less than six weeks, during the past 12 months. A 60 percent (maximum) rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. Note (1) following Code 5243 provides that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bedrest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. As an initial matter, the Board notes that there were significant changes to the rating criteria for musculoskeletal disabilities that became effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020). 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. However, substantively, the rating criteria as applicable to the spine did not change and any other changes made do not have an impact on rating the Veteran’s lumbar spine DDD. Thus, the Board will not further discuss them. At the outset, the Board notes the VA examinations are not adequate because they are not compliant with Correia v. McDonald, 28 Vet. App. 158 (2016). A remand is not necessary because the Veteran must show unfavorable ankylosis of the entire thoracolumbar spine to be entitled to an increased rating in excess of 40 percent. The considerations in Correia do not apply to the symptoms that must be shown for unfavorable ankylosis, such as restricted opening of the mouth and a limited line of vision, and thus remand for a new examination on these bases has no reasonable possibility of substantiating the claim. The record does not reflect, nor has the Veteran stated, that he has any of the requisite symptoms for a finding of unfavorable ankylosis. Accordingly, the Board finds that remand for a new VA examination is unnecessary. The Veteran has undergone several VA examinations throughout the appeal period. During a 2012 VA back examination, the Veteran was noted to have pain on forward flexion beginning at 50 degrees. However, because the VA examiner did not provide both active and passive range of motion measurements, the examiner’s finding is given little probative weight. In an April 2013 Private Treatment Record, the Veteran reports his back pain primarily consisted of achiness, but somewhat debilitating. The Veteran also reported nothing made the pain better, and lying down, standing, sitting, and walking worsen his symptoms. During a September 2018 VA back examination, the VA examiner opined the Veteran’s forward flexion was 60 degrees. However, the VA examiner noted the Veteran had functional loss as he was limited by pain and lumbar fusion. The VA examiner also noted passive range of motion measurements could not be performed as it was not feasible to do so in a safe and reasonable manner. The September 2018 examiner found the Veteran’s spine condition impacted his ability to work opining that his back pain worsened with sitting, prolonged standing and caused difficulty sleeping, in addition, it was noted he falls easily. The November 2019 VA examiner noted the Veteran’s reports of functional loss, to include difficulty sitting, standing or lying down for extended periods of time, difficulty walking, and being unable to do anything that requires him to use his back. In initial range of motion testing, the Veteran’s pain caused functional loss as it was difficult for him to twist, lift, and bend. The examiner noted with repeated use over time, functional loss is caused by the Veterans pain and fatigue. For the period prior to September 23, 2020, after reviewing the evidence, the Board finds the Veteran’s forward flexion more nearly approximates a finding that it is limited to 30 degrees or less. When considering the September 2018 VA examination, the examiner stated that passive range of motion could not be performed as it was not possible to do so in a safe and reasonable manner. This indicates that the Veteran had significant functional impairment throughout his entire range of motion. The September 2018 VA examiner’s note is also corroborated by the Veteran’s prior statements that he “lying down, standing, sitting, and walking worsen his symptoms” which indicates significant functional impairment in most aspects of everyday life. See April 2013 private treatment records. When viewed together, the evidence indicates the Veteran’s functional loss was more severe than the explicit range of motion findings in VA examinations. The evidence of record does not contradict a finding that forward flexion most nearly approximates a finding that it is limited to 30 degrees or less. The May 2012 VA examination did not discuss passive range of motion at all. While the November 2019 VA examiner did not note that passive range of motion could not be performed, he only noted there was pain but there is no indication of where the pain begins. Thus, for the period prior to September 23, 2020, the Board finds that the Veteran’s range of motion more closely approximates forward flexion limited to at least 30 degrees, and a 40 percent rating is warranted. For the entire appeal period, the Veteran is now rated at 40 percent. To warrant a disability rating in excess of 40 percent, the evidence would need to show unfavorable ankylosis of the thoracolumbar spine or the entire spine. Evidence of unfavorable ankylosis include restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration and difficulty walking because of a limited line of vision. There is no evidence in the record that the Veteran suffers from the symptoms associated with unfavorable ankylosis. Accordingly, an increased rating in excess of 40 percent must be denied. The Board has considered whether the Veteran would be entitled to a higher rating pursuant to a different formula for the spine. IVDS is rated pursuant to the Formula for Rating IVDS Based on Incapacitating Episodes. In order for the Veteran to obtain a rating in excess of 40 percent he would need to have incapacitating episodes of at least 6 weeks during the past 12 months. The preponderance of the evidence does not reflect that the Veteran should be entitled to a higher rating. The June 2012 VA examiner noted over the past 12 months, the Veteran had at 1 week, but less than 2 weeks of incapacitating episodes due to his IVDS. The September 2018 VA examiner noted over the past 12 months, the Veteran had no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician. The November 2019 VA examiner noted over the past 12 months, the Veteran had no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician. There is no evidence of record that the Veteran has had incapacitating episodes requiring bed rest prescribed by a physician of at least 6 weeks. Accordingly, the Veteran would not be able to obtain a higher rating and he is properly rated pursuant to the General Formula. In accordance to Note 1 under the General Rating Formula, any associated objective neurologic abnormalities are evaluated separately under an appropriate Diagnostic Code. The Board notes the Veteran is service-connected for radiculopathy for the entire appeal period. Thus, further evaluation for radiculopathy is not warranted. The Board finds that the evidence does not support a finding for separate evaluations for additional neurologic abnormalities as no abnormities were indicated in any of the Veteran’s examinations during the appeal period. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board EJ Richardson 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.