Citation Nr: 21024501 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-39 416 DATE: April 22, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for the Veteran’s degenerative disc disease (back disability) for the period prior to April 21, 2017, is denied. Entitlement to a disability rating of 40 percent for the Veteran's back disability for the period after April 21, 2017 is granted. REMANDED Entitlement to a disability rating in excess of 20 percent for left lower extremity radiculopathy is remanded. Entitlement to a disability rating in excess of 20 percent for right lower extremity radiculopathy is remanded. FINDINGS OF FACT 1. Prior to April 21, 2017, when considering additional functional loss due to flareups and pain on use, the Veteran’s back disability did not manifest in limitation of forward flexion of the thoracolumbar spine to 30 degrees or less and was not manifested by ankylosis of the entire thoracolumbar spine or ankylosis of the entire spine. 2. Since April 21, 2017, when considering additional functional loss due to flareups and pain on use, the Veteran’s back disability manifested as forward flexion of 30 degrees or less. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for the Veteran’s back disability for the period prior to April 21, 2017 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.25, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 2. The criteria for entitlement to an increased disability rating of 40 percent for the Veteran’s back disability for the period after April 21, 2017 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.25, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1970 to June 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in March 2021. A transcript of the hearing is of record. The Veteran’s Contentions The Veteran contends that the record evidence supports a higher rating for his back disability. Increased Rating for the Veteran’s Back Disability Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where the appellant has expressed dissatisfaction with the assignment of a rating, separate, or “staged,” ratings can be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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; DeLuca v. Brown, 8 Vet. App. 202 (1995). 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). 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. See id. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Court has held that the provisions of 38 C.F.R. § 4.59 are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The intent of the rating schedule is to recognize painful motion with joint and periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Board notes that during the pendency of this appeal, the schedule for rating musculoskeletal disabilities was amended, effective February 7, 2012. See 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). 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, the diagnostic codes relevant to rating the instant Veteran’s back disability were not changed. The criteria for rating all disabilities of the spine are set forth in 38 C.F.R. § 4.71a, which provides that spine disabilities are to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Spinal Formula) or under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Ratings under the General Spinal Formula 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. As relevant here, a 40 percent rating requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, General Spinal Formula. For an increase to 50 percent, the evidence must show for unfavorable ankylosis of the entire thoracolumbar spine. See id. A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. See id. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees. See id., at Note (2). Note 5 to the General Spinal Formula defines unfavorable ankylosis as “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 dislocation; or neurologic symptoms due to nerve root stretching.” Under the IVDS Formula, ratings are based on evidence of incapacitating episodes, defined as periods of acute signs and symptoms that require bed rest prescribed by a physician and treatment by a physician. The maximum rating under this formula is 60 percent. As demonstrated below, the evidence of record does not demonstrate IVDS, as such, the ratings are inapplicable. The Board recognizes that, in some circumstances, it must consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination when deciding an appropriate rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59; De Luca v Brown, 8 Vet. App. 202, 204-7 (1995). This rule does not apply where a higher rating requires ankylosis or incapacitating episodes. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). As relevant here, the Veteran has been rated at 20 percent for his back disability since VA received his claim for an increased disability rating on March 12, 2016. The Veteran was afforded a VA examination for his back disability in July 2016. He reported to the VA examiner that he had difficulty sleeping, bending, walking, sitting and standing and experienced pain. X-rays from July 2016 were noted to reflect minimal degenerative changes, with no fractures. The Veteran also reported that he experienced flareups that prevented him from walking far and resulted in him feeling fatigued. Range of motion was measured as forward flexion to 75 degrees. Pain was noted on examination, but the examiner noted that it did not result in functional loss. The Veteran was able to perform repetitive use testing with no reduction in his range of motion. The examiner noted that the examination was being conducted during a flareup and that there was no additional loss of range of motion. The examiner also noted that the Veteran did not have ankylosis and did not have IVDS. The Veteran testified at his March 2021 Board hearing that his back condition had worsened, and that he experienced flare-ups that resulted in his back becoming “completely locked up,” preventing him from bending over. The Veteran testified the flareups resulting in reduced forward range of motion started at the time of his April 2017 MRI, that was conducted in response to his complaint of severe pain. The Veteran testified that he had flare-ups “a couple times in a week” and that he did not seek treatment for his flareups, but tried to deal with them himself. VA treatment records reflect that the MRI was order April 21, 2017 based on the Veteran’s complaint of “severe” pain. The April 2017 MRI reflected multilevel degenerative changes with a disc bulge and protrusion. After a review of the medical and lay evidence of record, the Board finds that a disability rating in excess of 20 percent is not warranted prior to April 21, 2017. The Board also finds that an increased 40 percent rating is warranted for the period after April 21, 2017. The pertinent evidence in the record does not support a finding that the Veteran had forward flexion no greater than 30 degrees or ankylosis prior to April 21, 2017 so as to support a rating in excess of 20 percent for that period. The VA examiner measured the Veteran’s forward flexion to 75 degrees and reported that there was no additional loss of range of motion with flareups or repeated use over time. The examiner also reported that the Veteran did not have ankylosis. For the period after April 21, 2017, the competent lay evidence reflects that the Veteran experienced flareups of severe pain time that resulted in reduced range of motion, preventing him from bending over. VA treatment records regarding the April 2017 MRI confirm that the Veteran experienced “severe” back pain at that time. The Board interprets the inability of the Veteran to bend during flare-ups as approximating the criteria for motion loss for 30 degrees or less in favorable flexion. In making this determination, the Board considered functional loss caused due to pain and fatigue. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board also finds that a rating in excess of 40 percent is not warranted. In order to warrant a disability rating in excess of 40 percent, the evidence would have to demonstrate unfavorable ankylosis of the entire thoracolumbar spine. As noted, the VA examiner noted that there was no ankylosis of the spine. Although the Veteran claims that his back becomes completely locked up, there is no indication that he is qualified to provide a medical diagnosis of ankylosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In sum, the preponderance of the evidence does not support a disability rating in excess of 20 percent for the Veteran’s back disability for the period prior to April 17, 2017. The preponderance of the evidence supports a 40 percent rating, but no higher, for the period after April 17, 2017. To the extent the Veteran’s claims are denied, the preponderance of the evidence is against them and the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3. 102. REASONS FOR REMAND Radiculopathy The Veteran testified at the March 2021 Board hearing that his bilateral radiculopathy has worsened since the most recent VA examination for his back disability. Accordingly, remand is required for a VA examination to address the current nature and severity of the Veteran’s bilateral lower extremity radiculopathy. The matter is REMANDED for the following action: 1. Obtain pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Following the development in item 1, schedule the Veteran for a VA examination with an appropriate clinician to evaluate the Veteran’s bilateral lower extremity radiculopathy. The examiner must be provided with and review the entire claims file, to include a copy of this remand. All appropriate tests and studies should be conducted. The examiner should provide a full description of the radiculopathy and report all signs and symptoms necessary for evaluating the disability under the rating criteria. The examiner must also provide a rationale for any opinions, citing to specific evidence in the record. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Snyder, 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.