Citation Nr: 21021980 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-25 135 DATE: April 14, 2021 ORDER Entitlement to a disability rating higher than 20 percent for the service-connected lumbosacral spine disability is denied. FINDING OF FACT The service-connected lumbar spine disability is manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, and no degree of ankylosis. CONCLUSION OF LAW The criteria for a disability rating higher than 20 percent for the service-connected lumbar spine disability are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a veteran (the Veteran) who had active duty service from October 1979 to July 1989. This appeal comes before the Board of Veterans’ Appeals (Board) from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In April 2020, the Board remanded the issue on appeal for additional evidentiary development. The appeal has since been returned to the Board for appellate action. The Board has considered whether the issue of entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) is a component of the increased rating claim(s) on appeal in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009) (where there is evidence of unemployability raised by the record during a rating appeal period, the TDIU is an element of an initial rating or increased rating). However, the Veteran has not asserted that her service-connected disabilities have rendered her unable to secure or follow a substantially gainful occupation. The evidence shows that she is retired, but does not show that this is due to disability. Increased Ratings—Law and Regulations Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his or her present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). The rating must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). 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, supra; 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 (musculoskeletal system) or § 4.73 (muscle injury); 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). Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 (‘sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer’); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2021). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Gilbert at 54. Entitlement to a disability rating higher than 20 percent for the service-connected lumbar spine disability. In an October 2010 rating decision, VA granted service connection for a lumbar spine disorder and assigned an initial disability rating of 20 percent under Diagnostic Code 5237, effective July 30, 2010. The current appeal arises from an increased rating claim received at VA on January 3, 2013. Effective February 7, 2021, degenerative arthritis, and degenerative disc disease other than intervertebral disc syndrome are to be rated under Diagnostic Code 5242. A rating under Diagnostic Code 5243 for intervertebral disc syndrome is only to be assigned when there is disc herniation with compression of the adjacent nerve root. See 85 Fed. Reg. 76464 (Nov. 30, 2020). These changes do not affect the ratings assigned, but simply affect the diagnostic code to be assigned. All disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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. A rating of 100 percent requires unfavorable ankylosis of the entire spine. A rating of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. A rating of 40 percent requires forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A rating of 20 percent requires 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 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 rating of 10 percent is assigned with 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. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be 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. 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 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. 38 C.F.R. § 4.71a, General Formula, note (2) (See also Plate V). 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 Formula, Note (5). A VA examination in June 2013 reveals the Veteran’s complaint of chronic pain with no flares. Forward flexion was to 50 degrees with onset of pain at 50 degrees. Extension was to 15 degrees with onset of pain at 15 degrees. Lateral flexion and rotation were to 25 degrees, bilaterally, with no objective evidence of painful motion. There was no change in range of motion after 3 repetitions. Functional loss consisted of less movement than normal and pain on movement. Spasms and guarding did not result in abnormal gait or spinal contour. There was no radiculopathy. There were no incapacitating episodes of intervertebral disc syndrome. There were no other objective associated neurological abnormalities. The diagnosis was degenerative arthritis of the lumbar spine (Record 06/27/2013). A private chiropractic examination dated in April 2019 reveals the Veteran’s report of difficulty with household and personal activities. Forward flexion was to 38 degrees; extension was to 8 degrees; Left lateral flexion was to 9 degrees; Right lateral flexion was to 5 degrees (Record 05/02/2019). A VA examination in August 2020 reveals the Veteran’s complaint of sharp pain and stiffness. The Veteran reported difficulty bending, sitting, and standing for long periods of time. Flexion was to 60 degrees; extension was to 20 degrees; lateral flexion and rotation were to 20 degrees, bilaterally. After 3 repetitions, flexion was to 55 degrees, and the other excursions were each to 15 degrees. After repeated use over a period of time, flexion was estimated to be 50 degrees, and the remaining excursions each 10 degrees. With flares, flexion was estimated to be 45 degrees, and the remaining excursions each 10 degrees. Passive range of motion was the same as active range of motion. There was objective evidence of pain when in non-weight bearing activity. There was no guarding and no muscle spasm. Functional loss was due to pain. There was pain with weight bearing. With the exception of lower extremity radiculopathy, there were no other objective associated neurological abnormalities. There were no incapacitating episodes of intervertebral disc syndrome. The diagnosis was degenerative arthritis of the lumbar spine and intervertebral disc syndrome. The examiner opined that the Veteran was limited in lifting heavy objects for prolonged time periods due to pain (Record 08/17/2020). After a review of all of the evidence, the Board finds that the criteria for a disability rating higher than 20 percent for the service-connected lumbar spine disability are not met. The Board finds initially that there was substantial compliance with its remand instructions. The Board instructed that the Agency of Original Jurisdiction (AOJ) should obtain recent VA treatment records, and obtain a VA Examination with opinions regarding the estimated range of motion during flares and with repeated use over a period of time. These opinions were obtained in the August 2020 VA examination. In order to warrant the next higher rating, it must be shown that forward flexion of the thoracolumbar spine is limited to 30 degrees or less; or, that there is favorable ankylosis of the entire thoracolumbar spine. Based on the measurements conducted on multiple examinations, including by the Veteran’s private chiropractor, limitations to this extent have not been shown. While the Veteran has arthritis, there is no additional rating provided where limitation of motion of the affected joint is demonstrated. Here, the disability rating of 20 percent is awarded for limitation of motion. Therefore, no additional rating is available under Diagnostic Code 5003. In addition, the provisions of 38 C.F.R. § 4.59 establish only that the Veteran is entitled to the minimum compensable evaluation for painful motion. See also Burton v. Shinseki, 25 Vet. App. 1 (2011). Such is already assigned. Evaluations in excess of the minimum compensable rating must be based on demonstrated functional impairment. The Board has considered whether there are any separately ratable associated neurological abnormalities. The Veteran has bilateral lower extremity radiculopathy, which is already separately rated. There are no other associated objective neurologic abnormalities shown on examination or alleged. The Board has considered whether the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes would be more appropriate in light of the Veteran’s current diagnosis. However, the evidence does not substantiate incapacitating episodes requiring bed rest prescribed by a treatment provider. Accordingly, the Board finds that the General Rating Formula for Diseases and Injuries of the Spine is more appropriate. In sum, the Board finds that the service-connected lumbar spine disability is manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, and no degree of ankylosis. In light of these findings of fact, the Board concludes that a disability rating higher than 20 percent for the service-connected lumbar spine disability is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017) (the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Cramp 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.