Citation Nr: 21027184 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 10-18 977A DATE: May 4, 2021 ORDER A rating greater than 20 percent for asymmetrical disc space narrowing of the lumbar spine is denied. A rating greater than 20 percent for right ankle residuals, status post arthroscopic and surgical repair of brevis tear and ligament repair, is denied. A rating greater than 20 percent for left ankle residual strain with degenerative changes, status post arthroscopic reconstruction, is denied. REMANDED Service connection for headaches is remanded. FINDINGS OF FACT 1. The Veteran's asymmetrical disc space narrowing of the lumbar spine is manifest by forward flexion limited to 35 degrees at its worst. 2. The Veteran's right ankle disability is rated as 20 percent disabling, which is the maximum schedular rating permitted for limited motion of the ankle. Ankylosis is not present. 3. The Veteran's combined right ankle disability is rated at the highest rating available without violating the Amputation Rule. 4. The Veteran's left ankle disability is rated as 20 percent disabling, which is the maximum schedular rating permitted for limited motion of the ankle. Ankylosis is not present. 5. The Veteran's combined left ankle disability is rated at the highest rating available without violating the Amputation Rule. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 20 percent for asymmetrical disc space narrowing of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 2. The criteria for a rating greater than 20 percent for right ankle residuals, status post arthroscopic and surgical repair of brevis tear and ligament repair have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code 5271. 3. The criteria for a rating greater than 20 percent for left ankle residual strain with degenerative changes, status post arthroscopic reconstruction have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2001 to July 2005. The Board remanded the issues on appeal for additional development in April 2015 and April 2017. Increased Rating 1. Lumbar Spine The Veteran contends that he is entitled to a higher rating for his lumbar spine disability. The Veteran's asymmetrical disc space narrowing of the lumbar spine is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243, for intervertebral disc syndrome (IVDS). Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted 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 warranted 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 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 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. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. 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) ("[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). The Board finds that the preponderance of the evidence is against a rating greater than 20 percent for asymmetrical disc space narrowing of the lumbar spine based on incapacitating episodes. The Veteran does not have IVDS and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. None of the four VA examiners has found the Veteran to have IVDS and the treatment records in evidence to not include prescribed bed rest of any duration. The preponderance of the evidence is also against a rating greater than 20 percent for asymmetrical disc space narrowing of the lumbar spine under the General Rating Criteria. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the Veteran's statements would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. During a February 2008 VA examination, the Veteran demonstrated pain in the mid lumbar area with motion in any plane. The examiner could not quantitatively assess the Veterans range of motion and opined the examination and evaluation was markedly limited by the Veteran's "somewhat aberrant behavior" including refusal to follow through with requested studies. Notably, an MRI of the lumbar spine was normal. During an April 2008 VA examination, the Veteran reported tenderness in all areas of his low back without spasm. The examiner was able to measure the Veteran's range of motion twice, and recorded flexion to 34 degrees and 45 degrees. The Veteran stated he could not get on the examination table and the examiner was not able to complete the full examination. As a result, the functional impairment could not be determined. The examiner noted the Veteran was argumentative throughout the examination, refusing an EMG to rule out left and right radiculopathy. Contrary to his reports of pain that prevented all range of motion testing, a July 2008 VA treatment record documents normal range of motion in the Veteran's lumbar spine. In a January 2010 VA examination, the Veteran reported pain and chronic popping awakened him at night, and pain traveled down both legs to his knees. The examiner, like the 2008 examiners, noted the Veteran would not perform range of motion testing, complaining of pain even to light touch no matter where the examiner touched the spine. The examiner stated the Veteran was "very, very difficult to properly evaluate" and to separate functional deficit versus an emotional deficit, opining that the Veteran's lumbar spine not having any motion at all from pain that is allegedly 10/10 constantly with negative x-rays was "disconcerting." Imaging studies included in September 2011 VA treatment records, more than a year after the VA examination, still showed only minimal degenerative changes. In contrast to the prior examinations, the VA examiners in July 2016 and October 2017 measured forward flexion to 70 degrees with pain. The Veteran again reported experiencing constant pain and denied experiencing flare ups. He was able to complete repetitive use testing without any additional loss. Both examiners opined the Veteran did not experience any additional loss after repetitive use over time and had no radicular symptoms or any other neurological abnormalities. The Board acknowledges the Veteran's assertions during the February 2008 and January 2010 VA examinations that he was essentially unable to move his lumbar spine at all due to pain. But the Board must also consider the context in which the Veteran's assertions were made. See Acevedo v. Shinseki, 25 Vet. App. 286, 293-94. In both cases, the VA examiners stated the Veteran was not cooperative and would not perform the necessary range of motion testing, which indicates the Veteran was exaggerating his symptoms, as is shown by the February 2008 examiner's description of the Veteran's behavior as aberrant and the January 2010 VA examiner's comment that the Veteran's assertions of pain limiting all motion with negative x-rays was disconcerting. When read in context, the Veteran's behavior indicates that he failed to fully cooperate with the examiners, and his assertions that he was unable to move his lumbar spine at all therefore lack credibility and are afforded no probative weight. See Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); see also Wood v. Derwinski, 1 Vet. App. 406 (1991); Kowalski v. Nicholson, 19 Vet. App. 171, 178 (2005). Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. In March 2007, the Veteran reported numbness, tingling, and pain down both legs and problems with urination and defecation. The examiner noted the Veteran also stated there was no change in his symptoms with position and no precipitating or relieving factors. And objective testing showed strength of 4 of 5, normal sensation, normal reflexes, and an MRI of the lumbar spine was normal. The examining clinician therefore opined the Veteran's complained of back pain did not correspond with any particular nerve root distribution, which the Board finds indicates the reported pain was not related to the Veteran's lumbar spine disability. The February 2008, April 2008, and January 2010 VA examiners were unable to assess any radicular symptoms due to the Veteran's refusal to follow through with testing. In the more recent January 2010 and September 2011 VA examinations, the Veteran neither reported or demonstrated any radicular pain or other neurological symptoms. In sum, there is no credible evidence that the Veteran's lumbar spine disability has resulted in any additional neurological symptoms. Based on the foregoing, the preponderance of the evidence is against the Veteran's claim for a rating greater than 20 percent for asymmetrical disc space narrowing of the lumbar spine. The credible medical evidence demonstrates that, at its worst, the Veteran's lumbar spine was limited to 35 degrees of forward flexion. See April 2008 VA Examination Report. In denying a higher rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Bilateral Ankles The Veteran contends that he is entitled to ratings greater than 20 percent for his service-connected bilateral ankle disabilities. The Veteran's ankle disabilities are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, for limitation of motion of the ankle, which provides for a maximum rating of 20 percent. As the Veteran is in receipt of the highest schedular rating for limited motion for both ankles, there is no basis to award a higher rating. The Board has considered whether any other Diagnostic Codes related to disabilities of the ankle would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. Neither of the Veteran's ankles are ankylosed and he does not have any additional conditions, including malunion of os calcis or astragalus or astragalectomy. Therefore, separate or higher ratings are not warranted under Diagnostic Codes 5270, 5272, 5273, or 5274. As the Veteran already has the maximum schedular disability rating, the appeal is denied. Moreover, the "amputation rule" provides that the combined rating for disabilities of an extremity cannot exceed the rating for amputation at the elective level. 38 C.F.R. § 4.68. A 40 percent rating is assigned if there was an amputation of the lower extremity below the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5165. In addition to the 20 percent ratings assigned for limitation of motion, the Veteran has been assigned separate ratings for several scars on each ankle for the entire appeal period. The combined rating for each ankle, when the ratings for limitation of motion and scars are considered together, is 40 percent or greater. Thus, considering the amputation rule, even if they were applicable, assigning separate disability ratings under additional Diagnostic Codes applicable to the ankle would be impermissible. REASONS FOR REMAND 1. Service Connection for Headaches Unfortunately, there has not been substantial compliance with the Board's previous remand directives. In its April 2017 remand, the Board directed the AOJ to obtain a VA examination to determine whether the Veteran's headache condition preexisted his military service. While the Veteran was afforded the required VA examination in October 2017, the examiner opined that the Veteran's headaches preexisted service, but did not determine whether they clearly and unmistakably preexisted service, as directed by the Board. Because the VA examiner's opinion did not utilize the correct standard, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Obtain an additional opinion from an appropriate clinician to assess the nature of the Veteran's headaches. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After a review of the claims file, and examination of the Veteran if deemed necessary by the reviewing clinician, the reviewing clinician is asked to respond to the following inquiry with an explicit opinion: Did the Veteran's headaches clearly and unmistakably i.e., it is undebatably preexist the Veteran's service? If the examiner finds it did clearly and unmistakably preexist service, was it clearly and unmistakably not aggravated by service, including as due to syncopal episodes, specifically including the episode documented in January 2003 service treatment records? If the examiner finds that the Veteran's headaches either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to service, including his in-service headaches in January 2003. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Mine, 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.