Citation Nr: 21021797 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 20-00 543A DATE: April 14, 2021 ORDER Entitlement to a rating in excess of 40 percent for degenerative arthritis of the spine, from October 17, 2019, is denied. REMANDED Entitlement to a rating in excess of 20 percent for degenerative arthritis of the spine, from May 18, 2016 to October 17, 2019, is remanded. FINDING OF FACT For the period from October 17, 2019, the Veteran’s degenerative arthritis of the spine has been manifested by forward flexion of the thoracolumbar spine of 30 degrees or less, without ankylosis or intervertebral disc syndrome (IVDS). CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for the Veteran’s service-connected degenerative arthritis of the spine, from October 17, 2019, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2003 to February 2004 and from May 2010 to May 2011. This issue comes before the Board of Veterans’ Appeals (Board) on appeal from October 2016, November 2017, and October 2019 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran submitted a VA Form 20-0996 Decision Review Request: Higher-Level Review, requesting an effective date earlier than October 17, 2019 for the 40 percent rating for the Veteran’s service-connected spine disability. Because the VA Form 20-0996 was not received within 60 days of the most recent statement of the case, issued in November 2019, the appeal is not eligible for consideration under the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55, § 5108, 131 Stat. 1105. See 38 C.F.R. § 3.2400. Accordingly, the Board will consider the Veteran’s claim under the legacy system. Entitlement to a rating in excess of 40 percent for degenerative arthritis of the spine, from October 17, 2019, is denied. In December 2016, the Veteran filed a claim for an increased rating for his degenerative arthritis of the spine. By rating action of November 2017, the RO denied an increase in excess of 20 percent for the Veteran’s spine disability. By rating action of October 2019, the RO granted an increased rating of 40 percent for the Veteran’s spine disability, effective October 17, 2019. The Veteran contends that his spine disability is more disabling than reflected by the current percent disability rating assigned. The Veteran’s degenerative arthritis of the spine has been rated under Diagnostic Code 5242, degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome. 38 C.F.R. § 4.71a, Schedule of ratings – musculoskeletal system. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned 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 assigned 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 is 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, reserved lordosis, or abnormal kyphosis. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. 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). During the pendency of the instant appeal, VA promulgated new regulations governing ratings for musculoskeletal system and muscle disabilities, effective February 7, 2021. See 85 Fed. Reg. 76,453 (Nov. 30, 2020). The rating criteria for the spine were amended. Diagnostic Code 5242 was amended to make clear that its application was for degenerative arthritis/disc disease of the spine other than IVDS. Diagnostic Code 5243 was amended to make clear that it should only be applied for disc herniation with compression and/or irritation of the adjacent nerve root, and that all other disc diagnoses should be rated under Diagnostic Code 5242. Turning to the evidence, the Veteran was afforded a VA examination of his thoracolumbar spine in October 2019. He was diagnosed with degenerative arthritis of the spine. The Veteran reported that he has pain when supine and difficulty sleeping. The Veteran reported that he has flare-ups of the back: “His back will have flare-ups 3-5 days/week; they can last from several hours to several days. The Veteran described functional loss as being unable to bend over to lift heavy objects, requiring a cane for walking distances, using a backrest when driving, and using a chair with a special backrest. A review of range of motion testing showed forward flexion of 0 to 30 degrees, extension from 0 to 15 degrees, right lateral flexion from 0 to 10 degrees, left lateral flexion from 0 to 10 degrees, right lateral rotation from 0 to 20 degrees, and left lateral rotation from 0 to 20 degrees. The examiner reported that pain was noted on the examination that caused functional loss with forward flexion, extension, right lateral flexion, and left lateral flexion. The Veteran was able to perform repetitive-use testing with at least three repetitions. The examiner reported there was no additional loss of function or range of motion after three repetitions. The examination was not conducted immediately after repetitive use over time. The examiner stated that pain caused functional loss with repetitive use over time. He estimated the range of motion with repetitive use over time as the following: forward flexion of 0 to 10 degrees, extension from 0 to 5 degrees, right lateral flexion from 0 to 5 degrees, left lateral flexion from 0 to 5 degrees, right lateral rotation from 0 to 10 degrees, and left lateral rotation from 0 to 10 degrees. The examination was not conducted during a flare-up. The examiner stated that pain caused functional loss with flare-ups. He estimated the range of motion during flare-ups was the following: forward flexion of 0 to 10 degrees, extension from 0 to 10 degrees, right lateral flexion from 0 to 5 degrees, left lateral flexion from 0 to 5 degrees, right lateral rotation from 0 to 10 degrees, and left lateral rotation from 0 to 10 degrees. The examiner reported that the Veteran did not have ankylosis or IVDS of the thoracolumbar spine. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. The examiner concluded that the Veteran’s back disability impacted his ability to work as follows: “He is unable to lift heavy objects from below knee level. He cannot run or jump.” After consideration of the entire record and relevant law, the Board finds that a rating in excess of 40 percent for the Veteran’s service-connected cervical spine disability under Diagnostic Code 5242 is not warranted. During the Veteran’s October 2019 VA examination, range of motion testing reflected forward flexion of the Veteran’s thoracolumbar spine of 0 to 30 degrees. The examiner stated that pain caused functional loss after repetitive use and during flare-ups, which was estimated in terms of range of motion as 0 to 10 degrees. However, the VA examiner found that the Veteran did not have ankylosis or IVDS of the thoracolumbar spine. The Board had considered the Veteran’s lay statements of record that he experienced increased pain due to his spine disability. The Veteran is clearly competent to report observable symptomatology. However, as to the specific issue in this case, questions of nature and medical severity fall outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, the current severity of the Veteran’s spine disability is a matter suited to the realm of medical expertise. As such, to the extent the Veteran is addressing questions of the medical nature and severity of his spine disability, the Board finds that his statements are not competent lay evidence. Notwithstanding, the probative medical evidence of records outweighs the Veteran’s lay statements. In consideration of the above, the Board finds that the preponderance of the evidence weighs against a disability rating in excess of 40 percent for degenerative arthritis of the spine from October 17, 2019. Consequently, the benefit-of-the-doubt rule does not apply and entitlement to an increased rating as described above, is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND Entitlement to a rating in excess of 20 percent for degenerative arthritis of the spine, from May 18, 2016 to October 17, 2019, is remanded. While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran’s claim for a rating in excess of 20 percent for degenerative arthritis of the spine for the period from May 18, 2016 to October 17, 2019. In May 2016, the Veteran filed a claim for an increased rating for his degenerative arthritis of the spine. By rating action of October 2016, the RO granted an increased rating for the Veteran’s spine disability from 10 percent to 20 percent, effective May 18, 2016. By rating action of November 2017, the RO denied a rating in excess of 20 percent. The Veteran contends that the symptoms related to his spine disability warrant a rating in excess of 20 percent. The Veteran was afforded a VA examination of his thoracolumbar spine in March 2017. He was diagnosed with degenerative arthritis of the spine and intervertebral disc syndrome. The Veteran reported that he has persistent back pain radiating to his right leg. The Veteran reported that he has flare-ups of the back with severe pain. The Veteran described functional loss as his avoidance of lifting and bending. A review of range of motion testing showed forward flexion of 0 to 60 degrees, extension from 0 to 20 degrees, right lateral flexion from 0 to 20 degrees, left lateral flexion from 0 to 20 degrees, right lateral rotation from 0 to 25 degrees, and left lateral rotation from 0 to 25 degrees. The examiner reported that pain was noted on the examination that caused functional loss with forward flexion and extension. The Veteran was able to perform repetitive-use testing with at least three repetitions. The examiner reported there was no additional loss of function or range of motion after three repetitions. The examination was not conducted immediately after repetitive use over time. The examiner stated that pain, fatigue, and endurance caused functional loss with repetitive use over time. The examiner reported that he was unable to estimate the functional loss in terms of range of motion because “designating a numerical range of motion without measurement is inherently speculative.” The examination was not conducted during a flare-up. The examiner stated that pain, fatigue, and endurance caused functional loss with flare-ups. The examiner reported that he was unable to estimate the functional loss in terms of range of motion because “designating a numerical range of motion without measurement is inherently speculative.” The Board finds that the March 2017 examination was inadequate as the examiner failed to estimate the degree of additional range-of-motion loss during flare-ups or after repeated use. If an examination does not take place during a flare-up or after repeated use, the examiner should attempt to offer an estimate derived from information procured from relevant sources, including the Veteran’s lay statements. An examination that fails to attempt to ascertain adequate information from relevant sources regarding frequency, duration, characteristics, severity, or functional loss during flare-ups or after repeated use will be considered inadequate. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). There is no indication that the March 2017 examiner made any attempt to ascertain adequate information from relevant sources to provide the requested opinions. In consideration of the inadequacies of the March 2017 VA examination, the Board finds that a remand is warranted for a new VA examination to provide a retrospective opinion, if possible, as to the severity of the Veteran’s service-connected spine disability during the appellate period, which is up to one year prior to the filing of the increased rating claim for his right elbow disability in December 2016. Notably, once VA undertakes the effort to provide an examination when developing a claim, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. The matters are REMANDED for the following action: 1. Obtain an addendum retrospective medical opinion from the examiner who conducted the October 2019 VA examination, if available, or another qualified medical professional. The examiner must review the entire claims file, to include this remand. 2. If possible, the examiner should provide a retrospective opinion regarding functional limitations of the Veteran’s lumbar spine disability due to repetitive use and flare ups from May 2016 to October 2019 based on the Veteran’s lay statements of experienced symptomatology. 3. The examiner should also address, if possible, whether joint testing of the Veteran’s thoracolumbar spine would have shown objective evidence of pain in passive motion and in non-weight-bearing motion. 4. If it is not possible to provide a retrospective opinion without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. 5. Upon completion of the above actions, readjudicate the claim. If any determination remains unfavorable to the Veteran, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. § §§ 5109B, 7112. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Moore, 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.