Citation Nr: 21013661 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 13-16 798 DATE: March 10, 2021 ORDER Prior to February 12, 2020, entitlement to a 40 percent rating, but no higher, is warranted for a fracture of the lumbosacral spine, status post fusion with degenerative joint disease (low back disability) is granted, subject to the laws and regulations governing the payment of monetary benefits. Beginning February 12, 2020, entitlement to a rating in excess of 40 percent for a low back disability is denied. REMANDED Entitlement to a rating in excess of 10 percent for a left ankle disability prior to July 30, 2013, and in excess of 20 percent, thereafter, is remanded. Entitlement to a rating in excess of 10 percent for a right ankle disability prior to July 30, 2013, and in excess of 20 percent, thereafter, is remanded. FINDING OF FACT Throughout the appeal period, the preponderance of the evidence weighs in favor of a finding that the Veteran’s low back disability has been manifested by forward flexion to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine; the preponderance of the evidence weighs against a finding there has been unfavorable ankylosis. CONCLUSIONS OF LAW 1. Prior to February 12, 2020, the criteria for a 40 percent rating, but no higher, for a low back disability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 2. Beginning February 12, 2020, the criteria for a rating in excess of 40 percent for a low back disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from October 1967 to July 1971 and from June 1983 to February 1987. These claims are on appeal from a March 2009 rating decision. The Veteran testified at a hearing before the Board in April 2019. The Veterans Law Judge who held that hearing is no longer employed by the Board. In January 2021, the Board sent the Veteran a letter offering him the opportunity to request another optional Board hearing before a VLJ who would decide his case. The Veteran did not respond to that letter; therefore, his case has been reassigned to the undersigned VLJ for a decision. See 38 C.F.R. § 19.3(b). The Board notes that a September 2020 rating decision granted entitlement to TDIU, effective the date of the claim for increased ratings considered herein. Although all the evidence of record has been thoroughly reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The analysis in this decision focuses on what the evidence shows or fails to show with respect to the matters decided herein. The Veteran should not assume that pieces of evidence not explicitly discussed herein have been overlooked. See Allday v. Brown, 7 Vet. App. 517, 527 (1995). Increased Rating Claims Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 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 and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 1. Entitlement to a rating in excess of 20 percent for a low back disability prior to February 12, 2020, and in excess of 40 percent thereafter The Veteran is claiming higher ratings are warranted for his low back disability. All service-connected spine disabilities are rated pursuant to The General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the spinal disability is rated under the Formula for Rating Intervertebral Disc Syndrome Based (IVDS) on Incapacitating Episodes (Incapacitating Episodes Rating Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. No changes were made to the General Rating Formula under the recent rating criteria amendments. Under the General Rating Formula, a 20 percent rating is warranted for the thoracolumbar spine when forward flexion is greater than 30 degrees but not greater than 60 degrees. A 40 percent disability rating is warranted when forward flexion is to 30 degrees or less; or, there is evidence of favorable ankylosis of the entire thoracolumbar spine. The next highest 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. The maximum 100 percent evaluation is assigned if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. 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. 38 C.F.R. § 4.71a, General Rating Formula, Note (5). Objective evidence of neurologic abnormalities of the spine are rated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula at Note (1). In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran’s ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Incapacitating Episodes Rating Formula provides ratings for IVDS based the duration of incapacitating episodes in the previous twelve months. 38 C.F.R. § 4.71a, Incapacitating Episodes Rating Formula. VA regulation defines an “incapacitating episode” as a period of acute signs and symptoms due to IVDS that requires physician prescribed bed rest and treatment by a physician. Id. at Note (1) (emphasis added). Amendments were made to the rating criteria effective February 7, 2020, and now specifically indicate that a rating under IVDS may only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve; prior to then, this was not a requirement. 85 Fed. Reg. 230 (Nov. 30, 2020). However, the amendments are not relevant to the claim at hand; significantly, the Veteran has not claimed, and the evidence does not suggest that he has experienced incapacitating episodes which required physician prescribed bed rest; thus, these criteria are not applicable and will not be discussed herein. See id. Following a review of the evidence, the Board finds that prior to February 12, 2020, a 40 percent disability rating, but no higher, is warranted for the Veteran’s low back disability, as the preponderance of the evidence weighs in favor of a finding his condition was manifested by forward flexion is to 30 degrees or less or favorable ankylosis of the thoracolumbar spine. At a February 2009 thoracolumbar spine examination, the Veteran’s forward flexion was to 60 degrees and extension was to 20 degrees. He reported flare-ups but was not experiencing one at that examination. Notably, although the examiner documented objective evidence of pain during range of motion testing, there are no estimations of any additional loss of range of motion with repetitive use or flare-ups. VA treatment records dated in January 2009 reflect the Veteran was unable to bend and had limited extension in his back. Thus, the Board finds the evidence is at least in equipoise that with flare-ups or on repetitive use his forward flexion would have been to 30 degrees or less; therefore, resolving all doubt in his favor, the Board finds this examination supports a 40 percent rating. See 38 C.F.R. §§ 4.3, 4.7, 4.71a, General Rating Formula. At his July 2013 thoracolumbar spine examination, extension was to zero degrees, which represents favorable ankylosis of the thoracolumbar spine, and is consistent with a 40 percent rating. At a February 2020 thoracolumbar spine examination, the Veteran’s extension was to 10 degrees, which also supports a 40 percent rating. Based on the foregoing, prior to February 12, 2020, a 40 percent rating is warranted for the Veteran’s low back disability. Throughout the appeal period, a rating in excess of 40 percent is not warranted as the preponderance of the evidence weighs against a finding the Veteran has unfavorable ankylosis. Significantly, the fixation of his spine in extension has not caused 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. The Veteran is already in receipt of separate ratings for his left and right lower extremity radiculopathy as neurological manifestations associated with his low back disability. At VA medical appointments and thoracolumbar spine examinations, he denied any associated bladder or bowel abnormalities. Thus, the preponderance of the evidence weighs against a finding that additional ratings based on neurological abnormalities are warranted. Consideration has been given to the benefit of the doubt doctrine; however, as the preponderance of the evidence is against higher ratings than those assigned or continued herein, it is not applicable. See 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for a left ankle disability prior to July 30, 2013, and in excess of 20 percent, thereafter, is remanded. 2. Entitlement to a rating in excess of 10 percent for a right ankle disability prior to July 30, 2013, and in excess of 20 percent, thereafter, is remanded. The Veteran was recently afforded a February 2020 examination to determine the severity of his bilateral ankle disability. However, the Board finds this examination is not compliant with the holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court of Appeals for Veterans Claims held that examiners must ascertain information such as the frequency, duration, characteristics, severity, or functional loss during flare-ups and provide opinions based on additional limitation of motion during flare-ups based on estimates derived from information procured from relevant sources, including a veteran’s lay statements. Id. at 35-36. While the Veteran acknowledged flare-ups, the description of flare-ups and opinion regarding additional limitation of motion, as required by Sharp, are either insufficient or absent in the report. Moreover, there are no estimations regarding additional limitation of motion on repetitive use. Accordingly, a remand is required. The matters are REMANDED for the following action: Afford the Veteran an examination to determine the current severity of his bilateral ankle disabilities. The examiner must obtain from the Veteran and record in the examination report a complete description of the symptoms he experiences, to include any functional impairment. The examiner must provide the following information: (a) Obtain and record in the examination report a complete description from the Veteran regarding the frequency, duration, characteristics, severity, and functional loss on flare-ups. (b) Range of motion testing must be performed and include testing in active motion and passive motion. The examiner should also discuss weight-bearing and nonweight-bearing ranges. If such are not applicable, the examiner should state such along with an explanation. (c) The examiner should note any pain, weakened movement, excess fatigability, instability of station, and lack of coordination present. (d) The examiner should state whether the examination is taking place during a flare-up or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide opinions estimating any additional degrees of limited range of motion caused by functional loss during a flare-up AND after repeated use over time. If rendering any opinion is not possible, the clinician must provide an adequate explanation as to why; the inability to provide an opinion may NOT be based on the fact that the Veteran was not examined on repetitive use or during a flare-up. Estimations should be attempted to be made based on the Veteran’s description of symptoms. A complete rationale for each opinion is required. If the examiner is unable to provide any opinion without speculating, he or she must explain why this is so. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board O'Connell, Jessica L. 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.