Citation Nr: 21014107 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 09-24 595 DATE: March 11, 2021 ORDER Entitlement to an initial 20 percent rating, but no higher, for compression fracture lumbar spine with degenerative joint and disc disease, T12-L1 and L4-S1, effective March 22, 2011, is granted. FINDING OF FACT From the date of award of service connection, March 22, 2011, the Veteran's service-connected compression fracture lumbar spine with degenerative joint and disc disease, T12-L1 and L4-S1, has been manifested by pain with limitation of motion that more nearly approximates flexion limited to 60 degrees or less; but without forward flexion limited to 30 degrees or less, ankylosis, incapacitating episodes of at least four weeks over the past 12 months, or associated neurological abnormalities other than right lower extremity radiculopathy. CONCLUSION OF LAW The criteria for an initial 20 percent rating, but no higher, for compression fracture lumbar spine with degenerative joint and disc disease, T12-L1 and L4-S, have been met, effective March 22, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including §§ 4.7, 4.71a, Diagnostic Codes 5235-5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1994 to June 1994 and again for approximately two weeks in May 1997. He also had service in the National Guard until approximately August 2001. The Veteran testified before the undersigned Veterans Law Judge during a Board videoconference in January 2017. A transcript of the hearing has been associated with the record. The Board previously remanded this issue in May 2017 and August 2019 for further development. The Board finds that there has been substantial compliance with the prior remand directives. In March 2018, the Veteran’s low back disability rating was increased to 20 percent, effective February 27, 2018. However, higher ratings are available for the Veteran’s low back disability both before and after the effective date. As the Veteran is presumed to seek the maximum available benefit for a disability, this claim is still considered to be on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Most recently, the Board also remanded the issues of entitlement to service connection for gynecomastia, to include as secondary to anti-depressants and pain medication, and entitlement to attorney fees resulting from a July 2017 rating decision for issuance of a statement of the case (SOC) pursuant to Manlincon v. West, 12 Vet. App. 238, 239-41 (1999). The agency of original jurisdiction issued SOCs in December 2019 and January 2020, respectively. However, the Veteran did not submit a substantive appeal; as such, these matters are no longer in appellate status. During the pendency of the appeal, the rating criteria evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, effective February 7, 2021. 85 Fed. Reg. 230 (November 30, 2020). However, the Veteran’s lumbar spine disability is rated under the General Formula for Disease and Injuries of the Spine, which did not change. The Board observes that Diagnostic 5243 for intervertebral disc syndrome was revised to only apply when there is disc herniation with compression and/or irritation of the adjacent nerve root. Nevertheless, although it appears that the new version of Diagnostic Code 5243 does not apply in this case, the Board will still consider the criteria for Intervertebral disc syndrome as the previous criteria is more favorable to the Veteran. Entitlement to an initial higher rating for compression fracture lumbar spine with degenerative joint and disc disease, T12-L1 and L4-S1 The Veteran generally contends that he experiences pain and functional limitations that warrant an increased rating for his low back disability. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Under the General Rating formula for Diseases and Injuries of the Spine, ratings contemplate symptoms such as pain (whether or not it radiates), stiffness, or aching and are assigned as follows: a 20 percent rating is warranted for 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; a 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; a 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating is awarded for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): 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. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that a 20 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2006); see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). 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 ). See Mitchell, supra. Further, the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Initially, when resolving the benefit of the doubt in favor of the Veteran, the Board finds that a 20 percent rating is warranted from the date of claim of service connection. In this regard, the Veteran has consistently reported that he experiences functional limitations to warrant a higher rating. Significantly, at the Board hearing, he reported that he wore a back brace. Moreover, the October 2011 VA examination found that pain began at 60 degrees, which meets the criteria for a 20 percent rating. The Board notes that this examination was previously found inadequate under Correia. Likewise, the examiner did not provide in degrees any further loss of range of motion during flare-ups or repeated use over time. As such, this examination is also inadequate under Sharp v. Shulkin, 29 Vet. App. 26, 31 (2017). Regardless, subsequent VA examinations in February 2018 and December 2019 show forward flexion to 50 degrees and 60 degrees, respectively. Moreover, importantly, the December 2019 VA examination showed that flexion was limited to 55 degrees following repeated use. As such, these examinations also show that the Veteran meets the criteria for a 20 percent rating under the General Rating Formula. Accordingly, when resolving the benefit of the doubt in favor of the Veteran, a 20 percent rating is warranted from the date of award of service connection, March 22, 2011. However, based on the evidence of record, the Board finds that, when applying the General Rating Formula to the Veteran’s low back disability, the evidence does not warrant a rating in excess of 20 percent at any point since the award of service connection. In this regard, the medical evidence does not show flexion limited to 30 degrees or less. Importantly, the most restrictive range of motion, which was documented at the December 2019 VA examination, showed flexion to 55 degrees following repeated use. Although prior examinations were found inadequate under Correia, the most recent VA examiner noted that passive range of motion and non-weight bearing range of motion was tested, but there was no change. See Correia, cited above. The Veteran has reported chronic low back pain and thus, the Board recognizes the application of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca, supra. However, a higher compensation is not warranted under these provisions because there is no persuasive evidence of additional functional loss due to pain, weakness, fatigue, or incoordination which would limit motion to such a degree so as to warrant a rating in excess of the 20 percent. The Board again notes that the earlier VA examinations did not adequately address whether there is additional functional impairment follow repeated use or during flare-ups. Regardless, importantly, the most recent VA examination showed that pain, weakness, fatigability or incoordination limited functional ability with repeated use over time to 50 degrees and during flare-ups to 45 degrees. See Sharp v. Shulkin, 29 Vet. App. 26, 31 (2017). The Board finds that this examination is probative on whether the Veteran suffers additional functional loss. As such, even considering these findings, the Veteran’s functional impairment does not meet the criteria for a rating in excess of 20 percent. Again, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, does not itself constitute functional loss. Mitchell, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. at 11; see 38 C.F.R. § 4.40. In this case, it does not. Therefore, a rating in excess of 20 percent is not warranted based on limitation of motion. Further, consideration has been given as to whether a higher disability evaluation could be assigned under Diagnostic Code 5243 for intervertebral disc syndrome. There has been no evidence showing that the Veteran has been prescribed bed rest due to incapacitating episodes having a total of at least four weeks during the past 12 months to warrant a higher rating for intervertebral disc syndrome. In this regard, the VA examinations and VA treatment records are silent with respect to any findings of physician prescribed bedrest during this period. The Board notes that the most recent VA examiner observed radiculopathy of the right lower extremity associated with the Veteran’s low back disability. The Veteran has already been awarded a separate rating for such disability and this matter is not currently on appeal. Additionally, with the exception of radiculopathy of the right lower extremity, there has been no objective finding of neurological abnormalities associated with the Veteran’s low back disability during this period. In this regard, upon examination, all of the VA examiners clearly found that the Veteran did not have any associated neurological abnormalities. Thus, the Board finds that a separate rating is not warranted for any other neurological symptoms and the Veteran’s manifested symptoms associated with his low back disability are adequately contemplated in the current 20 percent rating. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. In this regard, he is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran’s descriptions of symptoms. The lay evidence has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. The Board has considered the Veteran’s lay statements in awarding a 20 percent rating from the date of claim. The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran’s service-connected low back disability; however, the Board finds that his symptomatology has been stable throughout the course of the appeal. Therefore, assigning staged ratings for such disability during this period is not warranted.   In conclusion, based on the analysis above, the Board finds that a 20 percent rating, but no higher, for the Veteran’s low back disability is granted, effective March 22, 2011. However, a preponderance of the evidence is against a rating in excess of 20 percent during this period, benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107 (b). L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.N. Moats 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.