Citation Nr: 21012601 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 11-31 389 DATE: March 4, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for lumbosacral strain is denied. Entitlement to an evaluation in excess of 10 percent for left foot reflex sympathetic dystrophy is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s lumbar spine disability was shown to result in limitation of forward flexion of the thoracolumbar spine to 80 degrees at worst, but with pain throughout the range of motion. The evidence does not show muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, nor does it demonstrate associated neurological impairment. 2. The preponderance of the evidence shows that throughout the appeal period, the Veteran’s neurological disability affecting the left foot has been manifested by no more than moderate incomplete paralysis of the affected nerve. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent from April 24, 2008 for lumbosacral strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 2. The criteria for a rating in excess of 10 percent from April 24, 2008 for left foot reflex sympathetic dystrophy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.59, 4.71a, 4.120, 4.124a; Diagnostic Code 5282, 8525. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Navy from January 2006 to April 2008. This matter comes to the Board of Veterans’ Appeals (Board) on appeal of a December 2010 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In August 2013, March 2017, January 2018, and August 2020, the Board remanded the issue on appeal for additional development, and the case has since been returned for further appellate review. A remand by the Board confers on the claimant a legal right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). The Board’s August 2020 remand directed the RO to obtain outstanding VA treatment records and pertinent records were associated with the file on August and November 2020. The Board’s remand also instructed the RO to provide the Veteran with an in-person examination to determine the nature and etiology of her back and foot conditions, which were provided in October 2020. The Board finds there has been substantial compliance with the prior remand directives and the medical opinions are discussed below. Id. at 271. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. Further, when evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45).   1. Entitlement to a rating in excess of 10 percent for lumbosacral strain The Veteran contends that she is entitled to a higher rating for her lumbosacral strain. In August 2020, the Board remanded the issue to allow AOJ adjudication based on newly submitted evidence. The RO continued her service-connection rating of 10 perfect disabling, effective April 24, 2008. The Veteran’s lumbosacral strain is rated under 38 C.F.R. § 4.71A, Diagnostic Code 5237. The Board notes the criteria for evaluating musculoskeletal disabilities was amended effective February 4, 2021; however, the criteria under Diagnostic Code 5237 remain unchanged. See 85 FR 76460, Nov. 30, 2020. 86 FR 8142, Feb. 4, 2021. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71A; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71A criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Veteran’s October 2019 VA exam notes her diagnosis as degenerative arthritis of the spine with onset in 2008 and lumbosacral strain diagnosed in 2007. C&P, 11/7/2019, pg 2/18. The Veteran reports her condition worsened since her last VA examination and now experiences constant stabbing pain, stiffness and tightness worse on the right side. Objective findings on her range of motion (ROM) are reported as 80 degrees forward flexion, 20 degrees extension, 20 degrees right lateral flexion, 15 degrees left lateral flexion, 15 degrees right lateral rotation, and 25 degree left lateral rotation. Degenerative sclerosis of the left facet at the lumbosacral junction is found. Pain is noted at each ROM testing but does not result in functional loss. The Veteran denies flare-ups. The examiner noted, “After review of the Veteran’s records including the order request, DBQ, physical exam, reported history and subjective complaints, relevant evidence of record and using my medical knowledge and expertise, I have no basis to offer additional losses of function or motion with repeated use over time.” VA treatment records and previous VA examinations show similar findings to those noted above. A November 2013 VA examination indicates a diagnosis of low back strain with onset in 2006. See CAPRI, 11/4/2013. ROM testing reveals forward flexion of 80 degrees with pain, extension of 25 degrees right and left lateral flexion of 25 degrees with pain, right and left lateral rotation of 30 degrees with no objective evidence of pain. ROM results remain stable after repetitive testing. The Veteran reported no flare-ups but indicated functional loss of less movement than normal and pain on movement. Guarding or muscle spasm is present but does not result in abnormal gait or spinal contour. Reflex, muscle strength, straight leg, and sensation results are normal. No radiculopathy, fracture, arthritis, and no other abnormalities are found. The examiner opined the Veteran’s low back pain would likely limit functionality during a flare-up but was unable to express what functional loss would be without resorting to speculation. See pg. 8/14. A February 2010 exam indicates the Veteran has normal ROM in flexion (90 degrees), extension (30 degrees), and left and right lateral rotation and flexion (30 degrees). Findings show an absence of weakness, stiffness, radiation, and spasms. The Veteran reports her functional impairment as difficulty lifting and fatigue. See CAPRI, 4/2/2019, pg. 102/113. An October 2008 examination reveals a diagnosis of lumbar facet arthropathy (degenerative arthritis of the lumbar spine). See VA Exam, 10/27/2008, pg. 25/41. The Veteran reports moderate, sharp pain in the lumbar region with flare-ups one to two times per month with no additional limitation of motion or functional impairment. Testing and diagnostic imaging reveal preserved spacing, normal alignment, normal bilateral results for sensory exams, normal reflex, and full ROM. No fatigue, weakness, spasms, stiffness, decreased motion, compression fracture, destructive lesions, limitation of join function, lack of endurance, ankylosis, or incoordination. Pg. 24/41. A February 2008 VA exam also reveals normal flexion, extension, lateral, and rotation ROM in the lumbar spine with no pain, fatigue, weakness, lack of endurance or incoordination with repetitive motion. CAPRI, 4/2/2019, Pg. 25/68. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for lumbosacral strain. While she experiences painful motion, that is considered in her 10 percent rating. The fact remains that she had at worst flexion to 80 degrees, which is nearly full flexion (90 degrees). Additionally, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait, or abnormal spinal contour such as reversed lordosis, or abnormal kyphosis. The Board acknowledges the Veteran’s lay reports of symptoms and that her symptoms have increased to a sharp, throbbing pain with certain activities or movements and is made worse by cold weather. The Veteran is a teacher and is required to stand for long periods of time, causing her pain. Per the Veteran, her degenerative arthritis impacts her ability to perform an occupational task that requires prolonged standing, walking, lifting, sitting, bending, climbing and descending the stairs; unable to do impact activities such as running, squatting/kneeling, and jumping, reduces the ability to perform activities affecting productivity/efficiency. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine not greater than 120 degrees. To the extent that the Veteran has more recently described flare-ups, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court stated that flare-ups must be considered in providing an estimate of additional functional loss based on range of motion. The VA examiners have not given an estimate of additional loss during flare-ups or after repeated use over time, and they stated that no opinion could be provided without mere speculation because they would need to observe the Veteran during periods of increased pain or other factors. However, there is no indication that any flare-ups or repeated use over time results in any additional loss of motion over that outlined below. Furthermore, the guidance on how to evaluate flare-ups has not been particularly clear. As a consequence, it is determined that the holding in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), will be expanded and flare-ups must be quantifiable and must result in limitation of motion of function beyond that contemplated by the already provided evaluation. Additionally, because there is a regulation addressing the stabilization of ratings, flare-ups must be of such length as to establish that the overall impairment is more severe than currently evaluated. The statements made in this case do not show that any flare-ups or repeated use over time have additionally limited function in a quantifiable way, nor do they show that they are of such length or duration that a higher or staged rating would not violate the rule regarding stabilization of ratings. In particular, the VA examiners attempted to elicit information from the Veteran in this regard, and she stated only that she has pain in her back and avoids certain activities. In sum, 38 C.F.R. § 4.1 provides that the degrees of disability specified by the ratings in particular diagnostic codes are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. Here, the Veteran’s reports of exacerbation or flare-ups for her back are not quantifiable and not of sufficient duration to warrant a change in evaluation without violating the spirit of Mitchell, 38 C.F.R. § 4.1, and the rule regarding stabilization of ratings. Furthermore, the lack of an opinion without speculation to estimate any additional range of motion loss during flare-ups or after repeated use due to not observing the disabilities during increased pain, as noted in Sharp, is not prejudicial. Therefore, no further VA examination or medical opinion is necessary. Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with her spine disability. The October 2019 examiner indicated sensation to touch testing produced normal results and there is an absence of radiculopathy, ankylosis, IVDS, guarding and spasm, and other neurologic abnormalities. Pg. 10/18. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. 38 C.F.R. § 4.71A. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for lumbosacral strain. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a rating in excess of 10 percent for left foot reflex sympathetic dystrophy The Veteran contends that she is entitled to a higher rating for her left foot reflex sympathetic dystrophy (RSD) with hammertoes. The disability is currently rated as 10 percent disabling with an effective date of April 24, 2008. This disability is rated under Diagnostic Code 8525, paralysis of the posterior tibial nerve. 38 C.F.R. § 4.124a. Under these criteria, mild and moderate incomplete paralysis is rated as 10 percent disabling. Severe incomplete paralysis is rated as 20 percent disabling. Complete paralysis is rated as 30 percent disabling if there is paralysis of all muscles in the sole of the foot, frequently with painful paralysis of causalgic nature; toes cannot be flexed; adduction is weakened; plantar flexion is impaired. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124A, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124A establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). A noncompensable evaluation is assigned for hammertoes, unless all toes are unilaterally affected without claw foot, at which point a maximum rating of 10 percent is warranted. 38 C.F.R. § 4.71a; Diagnostic Code 5282. The Board notes this criterion remains unchanged after the February 4, 2021 update to the schedule of ratings for the musculoskeletal system. See 85 FR 76460, Nov. 30, 2020. 86 FR 8142, Feb. 4, 2021. The Veteran was provided a VA examination in October 2020. The Veteran’s current diagnoses are bilateral hammertoe along the 5th metatarsal, hallux valgus of the left foot with mild or moderate severity, and bilateral acquired pes cavus. The examiner noted RSD of the left foot with an onset of 2006 and peripheral nerve symptoms in the left lower extremity are noted as moderate. Sensory exam on the left foot and toes exhibits decreased sensation. See C&P, 10/26/2020, pg. 9/13. The examination was negative for muscle atrophy and trophic changes, and the Veteran had a normal gait and muscle strength. Pain is indicated on exam but does not induce functional loss or limitations. Pg. 9/15. Pain was not indicated on passive or active motion in the left foot. Pg. 14/15. In a November 2013 VA examination, the Veteran was diagnosed with RSD, left foot strain, and pes cavus, and a history of hallux valgus is noted. See CAPRI, 11/4/2013, pg. 10/14. The Veteran reported pain in the Achilles tendon and dorsal surface and difficulty walking or standing for longer than 30 minutes. The exam notes an absence of fracture, dislocation, arthritic change, joint effusion, or soft tissue abnormality. The examiner notes the Veteran’s condition does not impact her ability to work. An October 2008 exam notes a diagnosis of RDS with mild hammertoe deformity. See VA Exam, 10/27/2008, pg. 8/41. The Veteran describes her symptoms as intermittent burning, stabbing, and stinging. No atrophy, malunion, hallux valgus, swelling, instability, tenderness, weakness or other significant bone deformity is present. No objective evidence of painful motion is noted and there are no findings of functional limitations of walking or standing. Pg. 5/41. The record reflects the Veteran has received multiple diagnoses throughout the period on appeal. However, the Veteran’s October 2020 examiner clarified that the Veteran’s left foot pain is related to her RSD and is accounted for in the peripheral nerve assessment and that additional diagnoses were not linked to her service-connected RSD. He explained pes cavus can be congenital or trauma-induced, or due to conditions including club foot, crush injury, or compartment syndrome, and not due to hammertoes. Hallux valgus can occur due to excessive activities and is not medically known to be caused by hammertoes as hammertoe is due to derangement of tendons, muscle, and ligaments that are designed to hold toes straight. Pg 15/15. Additionally, RSD is not a medically known cause of any of the above conditions, as RSD is a nerve condition while pes cavus, hammertoe, and hallux valgus are musculoskeletal and are caused congenitally or by repetitive overuse. C&P, 10/26/2020, Pg. 4/5. No aggravation beyond natural progression can be established as they are unrelated and not known to aggravate the other. The examiner indicated the Veteran’s established diagnosis remains the same with no additional diagnoses linked to the service-connected disability. the Board finds the opinion to be highly probative on the overall disability picture contemplated by the service-connected disability, given that it provides the underlying reasons for the conclusions reached, and is based on an examination of the Veteran and her particular disability picture. Based on the above, the Board finds that the disability is primarily manifested by pain and moderate paralysis. The most probative evidence of record is against a finding that the disability is manifested by trophic changes, loss of reflexes, muscle atrophy, complete paralysis. Rather, the examinations of record demonstrate that the Veteran’s disability has not affected muscle strength or reflexes, or resulted in atrophy. As such, the Board thus finds that the level of impairment is most analogous to moderate incomplete paralysis. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. A separate rating is not warranted for hammertoes, as to do so would violate the rule against pyramiding ratings, which means rating the same disability, or the same manifestation of a disability, under different diagnostic codes. 38 C.F.R. § 4.14. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for RSD. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.N. Chapman, 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.