Citation Nr: 21016048 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 16-18 452 DATE: March 19, 2021 ORDER Effective May 5, 2015, rating of 40 percent for degenerative arthritis of the low back is granted. FINDING OF FACT Considering the Veteran’s pain and corresponding functional impairment, including during flare-ups, throughout the appeal, throughout the appeal, his degenerative arthritis of the low back was productive of disability analogous to limitation of motion to 30 degrees or less of forward flexion. CONCLUSION OF LAW Throughout the appeal, the criteria for a 40 percent rating for degenerative arthritis of the low back have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from January 2002 to January 2004, including combat service in Iraq, and his decorations include the Combat Infantryman Badge. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in October 2018 for further development. In light of the decision in Correia v. McDonald, 28 Vet. App. 158, 166 (2016) concerning the adequacy of VA orthopedic examinations, the Board found a new VA examination should be provided addressing the Veteran’s lower back disability. See October 2018 BVA Decision. The record indicates that the Veteran is working full-time; therefore, the issue of entitlement to a total disability based on individual unemployability (TDIU) is not before the Board. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). 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. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran’s claim. An increased rating for 40 percent for degenerative arthritis of the low back The Veteran’s low back disability is currently rated as 10 percent disabling prior to October 9, 2019, and 20 percent disabling since that time, the date the post-remand VA examination was conducted, pursuant to Diagnostic Code 5242-5237. See July 2020 Rating Decision. Under those Diagnostic Codes, a 20 percent evaluation is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; or, 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 evaluation is warranted when forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or where there is favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, DCs 5242 to 5237. In evaluating joint disabilities, 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 Board finds that a rating of 40 percent is warranted for the Veteran’s back disability throughout the appeal. The Veteran’s VA medical examination prior to the October 2018 Board remand was found to be inadequate for adjudication purposes as it did not comply with addressing the impact of flare-ups on range of motion of the back and testing of pain on both active and passive motion in weight-bearing and non-weight bearing, pursuant to Mitchell v. Shinseki, 25 Vet. App. 32 (2011), Sharp v. Shulkin, 29 Vet. App. 26 (2017), and Correia v. McDonald, 28 Vet. App. 158 (2016). As such, the Board will not consider the findings in that pre-remand VA examination report in adjudicating this appeal. The Veteran was afforded a post-remand VA examination for his back disability in October 2019, which reaffirmed the Veteran’s degenerative arthritis of the spine with disc protrusion on left L5/S1, with reported flare-ups that occur 2 to 4 times a week lasting 30 minutes to an hour each, forward flexion of 60 degrees or less, and no ankylosis. Upon repetitive use testing, forward flexion was noted at 55 degrees of flexion, while Veteran was examined immediately after repetitive use over time and pain was found to significantly limit functional ability. The back disability was also noted to cause spasms with sitting more than two hours or standing for more than ten minutes. The Veteran was found to have mild intermittent pain in the left lower extremity; the severity of the radiculopathy was found to be mild in the left lower extremity and the right lower extremity was not affected. There was no objective evidence of pain when the spine is in a non-weight bearing position. The RO issued a rating decision in July 2020 in which it determined that an increased rating in excess of 20 percent was not warranted because forward flexion and lack of favorable ankylosis fell short of warranting a 40 percent rating. However, the VA examiner for the October 2019 examination did not address whether the Veteran’s increased functional loss during flare ups resulted in any additional limitation of motion during those periods. Thus, the examiner could not opine or attempt to estimate any additional degrees of limited motion caused by functional loss during a flare-up. Because the October 2019 VA examination notes pain, weakness, and significant limit on functional ability of the back disability, and the examination was not conducted during a flare-up, the Board finds that the Veteran’s degenerative arthritis more nearly approximates the criteria for a 40 percent rating when considering this report of pain, and limited functional ability with flare-ups. The Board concludes that considering the lay and medical evidence, including the October 2019 VA examination report, which shows that the Veteran had forward flexion to 60 degrees and that did not consider his limitation of motion during flare-ups, the condition warrants a 40 percent rating throughout the appeal. The Board also notes that as 40 percent is the highest schedular rating for limitation of motion of the spine, the regulatory provisions (38 C.F.R. §§ 4.40, 4.45) pertaining to functional loss are not for application. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997); see also Sharp v. Shulkin, 29 Vet. App. 26 (2017). As such, a rating in excess of 40 percent is not warranted based on limitation of motion. Moreover, the Veteran did not contend, and the evidence does not show that his back disability had been manifested by incapacitating episodes having a total duration of at least six weeks, during the past 12 months. As such, the preponderance of the evidence is against a rating in excess of 40 percent. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zarar Ahmed, 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.