Citation Nr: 21021725 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 15-05 939 DATE: April 13, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for degenerative disc disease of the lumbar spine is denied. FINDING OF FACT The Veteran’s lumbar spine disability has not been shown to result in forward flexion limited to 30 degrees or less, ankylosis, loss of use, or incapacitating episodes during the appellate period. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for a lumbar spine disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71(a), Diagnostic Code 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1983 to September 1987. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in June 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, in pertinent part, the Board denied the Veteran’s claim for an increased rating for a lumbar spine disability. The Veteran appealed the denial of an increased rating for a lumbar spine disability to the Court of Appeals for Veterans Claims (the Court). In the Joint Motion for Partial Remand (JMPR), the parties agreed that the May 2013 VA examination for the Veteran’s lumbar spine was inadequate because it did not adequately evaluate the Veteran’s degenerative disk disease under Correia v. McDonald, 28 Vet. App. 158 (2016). Correia requires VA examiners to test the involved joints “for pain on both active and passive motion in weight-bearing and non-weightbearing,” unless the medical examiner determines such tests cannot or should not be conducted. Id. However, the May 2013 examination report reflected that the VA examiner neither included all required ranges of motion nor explained why the testing was not conducted. Therefore, the Court vacated the decision and remanded the claim for a new VA examination consistent with the range of motion testing standards established in Correia. The appeal to the remaining issues was dismissed. Consistent with the terms of the JMPR, the Board remanded the Veteran’s claim in February 2020. The examination obtained was not adequate for adjudication and the Veteran’s claim was remanded again in September 2020 for additional development. The requested examination was obtained in November 2020. As such, the directives have been substantially complied with and the matter is again properly before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating The Veteran contends that his service-connected low back disability is worse than his current rating reflects. Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; see generally 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran’s entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found, is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, deformity, or atrophy of disuse. The diagnostic codes pertaining to range of motion do not subsume sections 4.40 and 4.45, and the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. See DeLuca, 8 Vet. App. at 206. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran’s low back disability is rated under Diagnostic Code 5243. All spine disabilities covered by Diagnostic Codes 5235 to 5242 are rated according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula) based on limitation of motion. 38 C.F.R. § 4.71a, General Formula. Under the General Formula, the spine is evaluated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. As an initial matter, the Board notes that effective February 7, 2021, VA amended the schedule of ratings for musculoskeletal disabilities. 85 Fed. Reg. 76,453 (Nov. 30, 2020) (eff. Feb. 7, 2021). However, this amendment did not change the rating criteria contained in the General Formula. Id. While the amendment did change the language contained in Diagnostic Code 5242 and 5243, these changes simply provided clarification that Diagnostic Code 5242 should be utilized for disc disease other than intervertebral disc syndrome and that Diagnostic Code 5243, governing intervertebral disc syndrome specifically, should be used only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Id. at 76,462. As the amendment did not substantively change the rating criteria utilized in rating the Veteran’s spine disability, the Board will not address the amendment further herein. Under the General Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, muscle spasm, guarding or localized tenderness not resulting in abnormal gain or spinal contour, or vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, General Formula. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. For VA compensation purposes, 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. See General Rating Formula for Diseases and Injuries of the Spine, Note 2. Additionally, 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 neurological symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See General Rating Formula for Diseases and Injuries of the Spine, Note 5. Concerning disabilities affecting the spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Formula, Note 1. For VA compensation purposes, 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. Id. at Note 2. 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 lateral rotation, with the normal combined range of motion of the thoracolumbar spine being 240 degrees. Id. Back disabilities may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Incapacitating Episodes Formula), which applies to Intervertebral Disc Syndrome (IVDS). See 38 C.F.R. § 4.71a, Incapacitating Episodes Formula. An “incapacitating episode” for purposes of totaling the cumulative time is defined as “period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.” 38 C.F.R. § 4.71a, Diagnostic Code 5243, Incapacitating Episodes Formula, Note 1. 1. Entitlement to an initial rating in excess of 20 percent for degenerative disc disease of the lumbar spine Turning to the evidence of record, during the period on appeal, the Veteran has reported that he experiences severe back pain and limitations on walking and standing. The Veteran is competent to report such lay-observable symptoms, and there is no evidence that his statements are not credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, they are entitled to significant probative weight as to the severity of the disability during the period on appeal. The Veteran was provided with VA spine examinations in May 2013, March 2020, and November 2020. On examination in May 2013 the Veteran was noted to have forward flexion to 80 degrees and extension to 20 degrees. There was pain reported after repetitive use testing that limited range of motion flexion to 75 degrees and extension to 20 degrees. There was no functional impairment noted, no tenderness, guarding or spasms, and muscle strength was normal. No radiculopathy was reported. The Veteran was noted to have IVDS, but the examiner stated there were no incapacitating episodes in the past 12 months and did not report use of assistive devices. In March 2020, the Veteran was afforded a VA examination pursuant to the June 2018 JMPR. The Veteran was noted to have range of motion measurements including forward flexion to 50 degrees and extension to 10 degrees. The examiner noted pain during the examination not resulting in functional loss and no pain with weight bearing. The examiner also noted that there was no change in range of motion after repetitive movement. The Veteran was able to perform repetitive-use testing with no additional loss of motion, though pain was observed upon repetitive use. The Veteran was noted to have IVDS, but the examiner stated there were no incapacitating episodes in the past 12 months. The March 2020 examination did not include all required ranges of motion or explain why the testing was not conducted nor did the examination satisfy the requirements of Sharp v. Shulkin, 29 Vet. App. 26 (2017). Therefore, the Veteran was afforded another examination in November 2020 to cure the deficiencies of the March 2020 examination. On examination in November 2020 and in an accompanying December 2020 addendum opinion, the examiner noted a diagnosis of scoliosis and degenerative disc disease. The Veteran reported swelling in the back and groin area and weakness in the back of both legs leading to him needing help tying up his shoes. Range of motion testing revealed that the Veteran had forward flexion to 75 degrees and extension to 20 degrees. The Veteran experienced pain in all ranges of motion. The Veteran was able to perform repetitive-use testing with no additional loss of motion, though pain was observed upon repetitive use. The Veteran reported frequent flare-ups that resulted in swelling in the back that was worsened when walking around, wearing heavy gear at work, having long work hours, and were alleviated with medication and conservative pain management techniques. During flare-ups, the examiner estimated that the Veteran did not have any loss of range of motion. In the December 2020 addendum opinion, the examiner estimated that the Veteran would use time off of work from a day to a week or less during flare-ups. In light of these estimates, the Board finds that the requirements of Sharp have been satisfied. Muscle strength was normal, and that there was no evidence of IVDS, ankylosis of any kind, guarding or spasms. No localized tenderness, pain on palpitation, pain on weight bearing or non-weight bearing was noted. The examiner did not observe guarding or spasms. Further, the examiner did not observe radiculopathy at time of exam though she noted it had been observed on prior exams. The Veteran endorsed occasional use of cane. The examiner noted that passive range of motion testing could not be administered as additional providers would be required to perform maneuver and measurements. Correia, 28 Vet. App. at 168. There is no evidence that any of the above examiners were either not competent or credible. As such, the Board finds that each respective examination report is entitled to significant probative weight as to the severity of the Veteran’s disability during the period on appeal. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Treatment records generally reflect reports of low back pain throughout the period on appeal. A September 2017 VA treatment record noted that the Veteran” was able to bend forward with arms outstretched to 30 degrees” and a July 2018 VA treatment record noted that the Veteran had flexion to 60 degrees and extension to 30 degrees, but no further testing is of record. The Board finds that the Veteran’s symptoms do not warrant a rating in excess of 20 percent at any point during his appeal. None of the range of motion measurements contained in the VA examination reports or the treatment records reflect that the Veteran’s limitation of motion during the period on appeal was 30 degrees or less. Indeed, the worst notation during this period is contained in the September 2017 treatment record, which noted forward flexion to 30 degrees. The May 2013, March 2020 and November 2020 VA examinations and the July 2018 treatment records reflect range of motion well in excess of 30 degrees of forward flexion. It is unclear what testing was done to elicit the September 2017 measurement of 30 degrees while bending forward, but it is not sufficient to warrant the next higher rating. Further, there is no medical evidence indicating that the Veteran’s lumbar or entire spine is fixed in position in any way, nor has the Veteran asserted that he is unable to move his lumbar or entire spine or that it is in a fixed position. Therefore, none of the evidence of record during the period on appeal reflects that the Veteran’s disability was manifested by ankylosis of any kind. In denying entitlement to an increased rating in excess of 20 percent, functional loss was considered. 38 C.F.R. §§ 4.40, 4.45. However, the November 2020 examiner noted that the Veteran had no further loss of motion with repeat testing, which is designed to elicit further limitation due to factors such as pain, weakness and fatiguability. In addition, while the Veteran experiences additional functional loss during periods of flare up, he does not experience any additional loss of range of motion during these periods. Therefore, this functional loss does not rise to the level that would warrant the assignment of the next higher rating of 40 percent. No additional higher or alternative ratings under different Diagnostic Codes can be applied. The Board notes the Veteran’s diagnosis of scoliosis which is contemplated by the 20 percent rating. The Board also notes that the Veteran has a diagnosis of IVDS. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Incapacitating Episodes Formula, Note 1. The Board acknowledges that the Veteran has reported flare-ups of back pain, to include his 2014 statement to a clinician that during flare-ups he is unable to work, and his 2014 Form 9 stating his back is sometimes “locked up” when we returns from work. He is competent to report these facts. See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau, 492 F.3d at 1376-77. However, none of the Veteran’s VA treatment records reflect incapacitating episodes of such a severity or frequency as would warrant an increased rating nor has the Veteran alleged having such. Further, the evidence does not show that he has at any point been prescribed bed rest for his thoracolumbar back disability. Id. As such, increased ratings based on incapacitating episodes are not warranted at any point during the period on appeal. Id. When evaluating disabilities of the spine, any associated objective neurologic abnormalities are to be rated separately under an applicable Diagnostic Code. 38 C.F.R. § 4.71a, General Formula, Note 1. Here, service connection for the Veteran’s left lower extremity radiculopathy has already been granted, and is separately rated as 10 percent disabling. The VA examination reports and the Veteran’s treatment records do not reflect any diagnoses of other associated neurologic abnormalities or any bowel or bladder impairments. As such, additional separate compensable ratings are not warranted. 38 C.F.R. § 4.71a, General Formula, Note 1. Concerning the right lower extremity, an October 2017 VA physical therapy record noted that the Veteran had right lower extremity radiculopathy. However, the majority of the medical evidence both before and after the October 2017 treatment note reflects that the Veteran does not have radiculopathy of the right lower extremity. The VA examiners from May 2013, March 2020, and November 2020 all noted that the Veteran does not have radiculopathy affecting the right lower extremity and that the Veteran generally denied any radicular symptoms, particularly radiating pain. As such, the preponderance of the evidence is against a finding that the Veteran has a neurologic abnormality associated with this low back disability that affects his right lower extremity, and therefore a separate compensable rating for such is not warranted at this time. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). Moreover, as the Veteran has not contended, nor does the evidence show that this disability renders him unemployable, the issue of entitlement to a total disability rating based on individual unemployability has not been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of the above, the preponderance of the evidence is against an increased rating in excess of 20 percent prior for the Veteran’s low back disability. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. L. BARSTOW Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rosenthal, Ariana 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.