Citation Nr: 21021994 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 92-06 364A DATE: April 14, 2021 ORDER Entitlement to an increased rating in excess of 20 percent prior to March 5, 2012, for dorso lumbar spine disability is denied. Entitlement to an increased rating in excess of 40 percent from March 5, 2012, for dorso lumbar spine disability is denied. Entitlement to an increased rating in excess of 20 percent prior to January 23, 2020, for cervical spine disability is denied. Entitlement to an increased rating in excess of 30 percent from January 23, 2020, for cervical spine disability is denied. FINDINGS OF FACT 1. Prior to March 5, 2012, the Veteran’s dorso lumbar spine disability has been manifested at worst by flexion of 60 degrees with no objective evidence of ankylosis or incapacitating episodes requiring prescribed bedrest. 2. From March 5, 2012, the Veteran’s dorso lumbar spine disability has been manifested at worst by flexion at 30 degrees with no objective evidence of ankylosis or incapacitating episodes requiring prescribed bedrest. 3. Prior to January 23, 2020, the Veteran’s cervical spine has been manifested by forward flexion greater than 15 degrees, with no objective evidence of ankylosis or incapacitating episodes requiring prescribed bedrest. 4. From January 23, 2020, the Veteran’s cervical spine has not been manifested by ankylosis or incapacitating episodes requiring prescribed bedrest. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 20 percent prior to March 5, 2012, for dorso lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 4.71a, Diagnostic Code 5242-5237. 2. The criteria for an increased rating in excess of 40 percent from March 5, 2012, for dorso lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 4.71a, Diagnostic Code 5242-5237. 3. The criteria for an increased rating in excess of 20 percent prior to January 23, 2020, for cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 4.71a, Diagnostic Code 5242-5237. 4. The criteria for an increased rating in excess of 30 percent from January 23, 2020, for cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 4.71a, Diagnostic Code 5242-5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from October 1981 to May 1982. These matters are on appeal from February 1991 and March 2000 rating decisions. The claims were last remanded in July 2020. 1. Entitlement to ratings in excess of 20 percent prior to March 5, 2012 for dorso lumbar spine disability 2. Entitlement to ratings in excess of 40 percent from March 5, 2012 for dorso lumbar spine disability Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. In the July 2020 decision the Board concluded that the Veteran was entitled to a rating of 20 percent prior to June 22, 2001. The Veteran’s dorso lumbar spine disability was subsequently rated 20 percent prior to March 5, 2012, under Diagnostic Code 5242-5237. During the pendency of the Veteran’s claim, the rating criteria for the spine were amended. Prior to September 26, 2003, limitation of motion of the dorsal spine warranted at most a 10 percent rating under Diagnostic Code 5291. However, limitation of motion of the lumbar spine warranted a 20 percent rating if moderate and a 40 percent rating if severe under Diagnostic Code 5292. 38 C.F.R. § 4.71a (2002). Beginning September 26, 2003, diseases and injuries of the spine are rated under the amended criteria, known as the General Rating Formula for Diseases and Injuries of the Spine. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Normal thoracolumbar spine motion includes 90 degrees of flexion, 30 degrees of extension, 30 degrees of lateral flexion, and 30 degrees of rotation. 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) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In the July 2020 decision, the Board also remanded the issues on appeal. In doing so, the Board concluded that previous VA examinations were inadequate as they did not consider “active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint” in accordance with 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). The Board remanded the issue for an adequate examination assessing the Veteran’s current severity, as well as retrospective assessment for previous range of motion measurements during flare-ups. Turning to the evidence of record, a July 2001 VA examination report noted the Veteran with thoracolumbar forward flexion to 60 degrees, extension to 10, bilateral flexion to 20 degrees, and bilateral rotation to 20 degrees. An August 2008 VA examination report noted the Veteran at worst, with back forward flexion to 70 degrees, extension to 20, bilateral flexion to 20 degrees, and bilateral rotation to 20 degrees. In compliance with the July 2020 remand the Veteran was afforded a VA examination in November 2020. Importantly, the examiner provided (estimated) retrospective range or motion measurements during flare-ups for previous examinations, as follows. The March 5, 2012, retrospective estimate reflected the Veteran at worst, with back forward flexion to 30 degrees, extension to 5, bilateral flexion to 10 degrees, and bilateral rotation to 15 degrees. The April 2013 retrospective estimate reflected the Veteran at worst, with back forward flexion to 30 degrees, extension to 15, bilateral flexion to 15 degrees, and bilateral rotation to 15 degrees. The December 2017 retrospective estimate reflected the Veteran at worst, with back forward flexion to 40 degrees, extension to 5, bilateral flexion to 10 degrees, and bilateral rotation to 15 degrees. The November 2020 examination reflected the Veteran at worst, with back forward flexion to 25 degrees, extension to 5, bilateral flexion to 5 degrees, and bilateral rotation to 5 degrees. The examinations do not reflect the Veteran with ankylosis or IVDS requiring bedrest. The Board has considered the Veteran’s statements regarding her back symptomology which results in pain and reduced range of motion however such does not warrant an increased rating. Based on the above, the Board finds that an increased rating in excess of 20 percent prior to March 5, 2012; and in excess of 40 percent thereafter for dorso lumbar spine disability is not warranted. A disability rating in excess of 20 percent prior to March 5, 2012, is not warranted here as the competent credible evidence does not indicate that the Veteran’s back was neither severe in nature or had forward flexion of the thoracolumbar spine 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine; or unfavorable ankylosis in the entire spine, entire thoracolumbar spine, or entire cervical spine. Furthermore, the claims folder does not indicate that the Veteran had IVDS resulting in an incapacitating episode. Further, a disability rating in excess of 40 percent from March 5, 2012, is not warranted here as the competent credible evidence does not indicate that the Veteran’s back has ankylosis either favorable or unfavorable. Furthermore, the claims folder does not indicate that the Veteran had IVDS resulting in an incapacitating episode. 3. Entitlement to an increased rating in excess of 20 percent prior to January 23, 2020 for cervical spine disability 4. Entitlement to an increased rating in excess of 30 percent from January 23, 2020 for cervical spine disability The Veteran’s service-connected cervical spine disability has been rated under Diagnostic Code 5242-5237. 38 C.F.R. § 4.71a. A 20 percent disability rating for forward flexion of the cervical spine greater than 15 degrees, but not greater than 30 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 disability rating is assigned for forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. In addition, intervertebral disc syndrome (IVDS) may also be evaluated based on incapacitating episodes, depending on which method results in the higher evaluation when all disabilities are combined under § 4.25. In the July 2020 decision, the Board also remanded the issues on appeal. In doing so, the Board concluded that previous VA examinations were in adequate as they did not consider “active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint” in accordance with 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). The Board remanded the issues for an adequate examination assessing the Veteran’s current severity as well as retrospective assessment for previous range of motion measurements during flare-ups. A June 1992 VA examination reflected the Veteran’s cervical spine had a forward flexion from 0 to 30 degrees, extension from 0 to 30 degrees, bilateral flexion from 0 to 10 degrees, bilateral rotation at 30 degrees. The Veteran’s combined range of motion of his cervical spine was 140 degrees. A March 1994 VA examination reflected the Veteran’s cervical spine had a forward flexion from 0 to 30 degrees, bilateral flexion from 0 to 10 degrees, bilateral rotation at 30 degrees. An August 2008 VA examination reflected the Veteran’s cervical spine had a forward flexion from 0 to 30 degrees, extension from 0 to 30 degrees, bilateral flexion from 0 to 30 degrees, bilateral rotation at 45 degrees. In compliance with the July 2020 remand the Veteran was afforded a VA examination in November 2020. Importantly, the examiner provided (estimated) retrospective range or motion measurements during flare-ups for previous examinations found in adequate. The March 2012 retrospective estimate reflected the Veteran’s cervical spine at worst, with forward flexion to 25 degrees, extension to 15, bilateral flexion to 15 degrees, and bilateral rotation to 45 degrees. The April 2013 retrospective estimate reflected the Veteran’s cervical spine at worst, with forward flexion to 25 degrees, extension to 25, bilateral flexion to 15 degrees, and bilateral rotation to 45 degrees. The December 2017 retrospective estimate reflected the Veteran’s cervical spine at worst, with forward flexion to 30 degrees, extension to 20, bilateral flexion to 20 degrees, and bilateral rotation to 45 degrees. The January 23, 2020 examination reflected the Veteran’s cervical spine at worst, with forward flexion to 15 degrees, extension to 10, bilateral flexion to 25 degrees, and bilateral rotation to 55 degrees. The November 2020 examination reflected the Veteran’s cervical spine at worst, with forward flexion to 10 degrees, extension to 10, bilateral flexion to 20 degrees, and bilateral rotation to 25 degrees. The Board has considered the Veteran’s statements regarding her neck symptomology which results in pain and reduced range of motion however such does not warrant increased ratings. Based on the above, the Board finds that an increased rating in excess of 20 percent prior to January 23, 2020; and in excess of 30 percent thereafter for cervical spine disability is not warranted. Prior to January 23, 2020, the Veteran’s cervical spine did not reflect forward flexion was not to 15 degrees or less, ankylosis, or IVDS resulting in an incapacitating episode requiring bedrest. From January 23, 2020, the Veteran’s cervical spine does not reflect ankylosis (favorable or unfavorable), or IVDS resulting in an incapacitating episode requiring bedrest. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brandon A. Williams, 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.