Citation Nr: 21023433 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 15-28 738 DATE: April 20, 2021 ORDER Entitlement to an initial rating of 20 percent, but no higher, for a back disability is granted. FINDING OF FACT The preponderance of the evidence shows that the Veteran’s back disability is manifested by adverse symptomatology that equates to forward flexion of the thoracolumbar spine not greater than 60 degrees when considering his complaints of pain but not 30 degrees or less even when considering his complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups nor is it manifested by ankylosis or incapacitating episodes that required bed rest prescribed by a physician and treatment by a physician having a total duration of at least 4 weeks during a 12-month period at all times during the appeal. CONCLUSION OF LAW The criteria for a 20 percent evaluation for a back disability, but no higher, have been met at all times during the appeal. 38 U.S.C. §§ 1155, 5100, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 3.655, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.71a, Diagnostic Codes 5235 to 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1986 to April 1995 and from August 2004 to October 2005. In July 2018 and August 2020, the Board of Veterans’ Appeal (Board) remanded the Veteran’s claim for further development. During the pendency of the appeal, in February 2021, the regional office (RO) issued a rating decision granting an award for the Veteran’s back disability with an evaluation of 20 percent, effective February 17, 2021. Since the Veteran is presumed to be seeking the maximum benefit allowed by law and regulation, the additional assignment of benefits in the February 2021 rating decision is not considered to have resolved the Veteran’s claim at that time. AB v. Brown, 6 Vet. App. 35 (1993). The Post-Remand Development and Correia and Sharp Concerns Initially, the Board finds that the post-Remand development complied with the three earlier Board remands. As to the Board’s Remands and their request for missing records, the post-remand development shows that the RO obtained and associated with the record all identified and available private treatment records for which the appellant provided authorizations as well as all identified and available VA treatment records. See 38 U.S.C. § 5103A(b). The Board has also reached this conclusion because it finds that the May 2019 and February 2021 VA examinations, when taken together provide all needed information to rate the back disability under all applicable rating criteria including range of motion studies that considered his complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board’s remand, because such determination more than substantially complied with the Board’s remand order); also see Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this regard, in the February 2021 examiner accordance with Sharp, supra, specifically reported estimated range of motions during flare-ups. Therefore, the Board finds that further delay by remanding these issues to provide the Veteran with a new VA examination is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Rating Claim The Veteran contends that his back disability is more severe than represented by the rating assigned at all times during the appeal. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code (DC). 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). When evaluating joint disabilities rated on the basis of limitation of motion, 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 (2016); DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (Court) has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, in Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012) the Court held that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria. The Court in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Merits of the Claim The Veteran’s back disability is rated as 10 percent disabling, prior to February 17, 2021 and 20 percent disabling thereafter under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Initially, the Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. However, these changes did not change the way back disabilities are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Therefore, the Board finds that a Remand to provide the Veteran with notice of the change in the rating criteria is not required. In this regard, the General Rating Formula for Disease and Injuries of the Spine provides that with or without such symptoms as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent rating is warranted if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees, the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or a vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, if the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, 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 rating is warranted if forward flexion of the thoracolumbar spine being 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine; and 100 percent rating if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. Normal back motion is flexion to 90 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left rotation to 30 degrees. 38 C.F.R. § 4.71a, Plate V. Furthermore, the Formula for Rating Intervertebral Disc Syndrome provides a 10 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 1 week during the past 12 months; a 20 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 2 weeks during the past 12 months; a 40 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 4 weeks during the past 12 months; and a 60 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Diagnostic Code 5243 defines an incapacitating episode as one where the Veteran has physician prescribed bed rest. In this regard, when considering the Veteran’s complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups the flexion of the back was 90 degrees at the April 2013 and May 2019 VA examinations as well as 55 degrees at the February 2021 VA examination. Similarly, the combined range of motion of the thoracolumbar spine was 210 degrees at the April 2013 and May 2019 VA examinations as well as 125 degrees at the February 2021 VA examination. Tellingly, the Court has held that, “it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date.” Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under Diagnostic Code 7528); see also Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014). (holding that a medical opinion can diagnose the presence of the condition and identify an earlier onset date based on preexisting symptoms). Therefore, while the RO has rated the Veteran’s back disability as 10 percent disabling prior to February 17, 2021, and 20 percent thereafter, the Board’s adjudication can consider the totality of his adverse back symptomatology since he filed his rating claim when assigning the rating for the back. Accordingly, with giving the Veteran the benefit of doubt in this matter, the Board nonetheless finds that when considering 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court’s holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, as well as when considering the appellant’s competent reports of his observable adverse symptomatology (see Davidson, supra), he meets the criteria for at least a 20 percent rating at all times during the appeal under the General Rating Formula for Disease and Injuries of the Spine. The Board has reached this conclusion because the record shows that flexion was 55 degrees at the February 2021 VA examination (i.e., not greater than 60 degrees) even though it was higher at his other two VA examinations. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a; Fenderson, supra; Hart, supra; Also see 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, supra. As to a rating in excess of 20 percent for the back disability, the Board finds that even when considering the Veteran’s complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court’s holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, as well as when considering the appellant’s competent reports of his observable adverse symptomatology (see Davidson, supra), he does not meet the criteria for at least the next higher, 40 percent, rating. The Board has reached this conclusion because flexion of the thoracolumbar spine was higher than the 30 degrees or less required for a 40 percent rating at all of his VA examinations (i.e., flexion of the back was 90 degrees at the April 2013 and May 2019 VA examinations and 55 degrees at the February 2021 VA examination). See 38 C.F.R. § 4.71a, Diagnostic Code 5235-5242; Fenderson, supra; Hart, supra. The Board also finds that the Veteran’s treatment records do not document flexion being 30 degrees or less as well as finds that the Veteran is not competent to provide such a finding because it is medical in nature. See Colvin, supra; Davidson, supra. Similarly, the Board finds that the Veteran does not meet the criteria for a rating in excess of 20 percent for his back disability under the General Rating Formula for Disease and Injuries of the Spine during the appeal period because the record is negative for a diagnosis of ankylosis of the thoracolumbar spine at any time during the appeal. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a; Fenderson, supra; Hart, supra; VA examinations dated in April 2013, May 2019, and February 2021. See Colvin, supra. In fact, the April 2013, May 2019, and February 2021 VA examiners opined that the Veteran did not have ankylosis and these medical opinions are not contradicted by any other medical evidence of record. See Colvin, supra. Moreover, the Board finds that the Veteran is not competent or credible to provide the missing diagnosis because this is a medical finding and he does not have the required expertise. See Davidson, supra. Furthermore, in the absence of ankylosis the Board may not rate his back disability as ankylosis. See Johnston v. Brown, 10 Vet. App. 80 (1997). Likewise, the Board finds that the Veteran does not meet the criteria for a rating in excess of 20 percent for his back disability under the Formula for Rating Intervertebral Disc Syndrome at any time during the appeal period because the record, including the April 2013, May 2019, and February 2021 VA examinations, are negative for his having physician ordered bedrest much less 4 weeks of incapacitating episodes during any 12-month period during the pendency of the appeal. See Colvin, supra. Moreover, the Board finds that the Veteran is not competent or credible to provide the missing evidence of having physician ordered bedrest because this is a medical finding and he does not have the required training and his treatment records does not show he ever had a total of at least 4 weeks of incapacitating episodes during any 12-month period during the pendency of the appeal. See Davidson, supra. Therefore, the Board also finds that the criteria for a rating in excess of 20 percent for the Veteran’s back disability is not met at any time during the appeal under 38 C.F.R. § 4.71a, Diagnostic Code 5243. See Fenderson, supra; Hart, supra; Davidson, supra; Colvin, supra. In reaching the above conclusions, the Board has also considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim to the extent outlined above, the Board finds that this doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz, supra; Gilbert, 1 Vet. App. at 55-56. NEIL T. WERNER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher M. Davidson 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.