Citation Nr: 21027779
Decision Date: 05/06/21	Archive Date: 05/06/21

DOCKET NO. 15-42 377
DATE: May 6, 2021

ORDER

A disability rating in excess of 40 percent from February 11, 2013 to January 11, 2015 for a service-connected back disability characterized as lumbosacral strain, degenerative disc disease, degenerative arthritis, and intervertebral disc syndrome (IVDS) is denied.

FINDING OF FACT

From February 11, 2013 to January 11, 2015, the Veteran's back disability, characterized as lumbosacral strain, degenerative disc disease, degenerative arthritis, and IVDS, did not result in unfavorable ankyloses of the entire thoracolumbar spine or the entire spine, IVDS with incapacitating episodes, or associated objective neurologic abnormalities not otherwise separately service connected. 

CONCLUSION OF LAW

The criteria for a rating in excess of 40 percent for a back disability characterized as lumbosacral strain, degenerative disc disease, degenerative arthritis, and IVDS have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Air Force from July 1972 to July 1992. 

This matter comes before the Board of Veterans Appeals (Board) on appeal from a rating decision issued in March 2014 by the Department of Veterans Affairs (VA) Regional Office in Milwaukee, Wisconsin.

In April 2019, the Board remanded the case for additional development. While on remand, a May 2020 rating decision increased the rating for the Veteran's back disability characterized as lumbosacral strain, degenerative disc disease, degenerative arthritis, and IVDS, to 40 percent for the period from February 11, 2013 to January 11, 2015. However, as he is presumed to be seeking the maximum benefit for a disability and a higher rating for such disability remains available on appeal, such claim for a higher rating remains in appellate status.  A.B. v. Brown, 6 Vet. App. 35, 38 (1993).

Increased Rating

The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10.

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the United States Court of Appeals for Veterans Claims held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. 

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). 

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016).

Separate ratings can be assigned for separate periods based on the facts founda practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. However, if the preponderance of the evidence is against the veteran, the claim will be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Veteran's lumbosacral strain, degenerative disc disease, degenerative arthritis, and IVDS (hereinafter, "back disability") is currently evaluated as 40 percent disabling pursuant to Diagnostic Code 5237, for the period on appeal. In this regard, VA regulations specify that disabilities of the spine should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, Diagnostic Code 5235-5243. When IVDS is present, it is to be evaluated under the General Rating Formula unless it is more favorable to rate under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). 

Ratings under the General Rating 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. 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. Finally, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a.

Note (1): Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code.

Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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 cervical spine is 340 degrees and 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.

Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.

Note (4): Round each range of motion measurement to the nearest five degrees.

Note (5): 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.

Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 

As noted above, IVDS may be evaluated under either the General Rating Formula or under the IVDS Formula, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The IVDS Rating Formula provides that a 40 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 

Upon review of the entirety of the evidence, to include VA treatment records and retroactive VA examination reports addressing the period from February 11, 2013 to January 11, 2015, the Board finds that such fails to show that the Veteran's back disability resulted in ankylosis of any part of his spine. Specifically, a June 2020 report prepared by a VA examiner to address the period on appeal shows that the Veteran was capable of range of motion, albeit limited, in his spine. Therefore, a rating in excess of 40 for his back disability under the General Rating Formula is not warranted. 

Additionally, the Board has considered Note (1) to the General Rating Formula, which provides that any associated objective neurologic abnormalities should be separately evaluated under an appropriate diagnostic code. In this regard, the Board observes that the Veteran has been awarded separate ratings for right lower extremity radiculopathy of the sciatic and femoral nerves, associated with his back disability. The evidence does not show any additional associated objective neurologic abnormalities, to include radiculopathy of the other extremities, erectile dysfunction (ED), or bladder or bowel incontinence. Therefore, absent evidence of objective neurologic abnormalities associated with the Veteran's back disability, the Board finds that separate ratings for such conditions are not warranted. 

Furthermore, as the Veteran has been assessed with IVDS, the Board has considered whether a higher rating for his back disability is warranted under IVDS Rating Formula. In an April 2021 brief, his representative argued that the Veteran had been forced to take to bed when his back disability was at its worse, and noted that the VA examiner tasked with authoring the retrospective report "credited the [V]eteran's statement that his symptoms range from an inability to lift items to bed confinement." Thus, the Board should do the same. However, the Board must find that the treatment records for the very specific time period on appeal fail to reveal that the Veteran's treatment providers have prescribed bed rest for his back disability. The Board acknowledges an August 2012 prescription of bed rest; however, this is outside the period on appeal and was not subsequently re-prescribed. Further, the November 2019 VA examiner specifically reported that the Veteran's IVDS did not result in any episodes of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician. Ultimately, as there is no medical evidence from February 11, 2013 to January 11, 2015 showing incapacitating episodes requiring bed rest prescribed by a physician and treatment by a physician having a total duration of at least four weeks during the past 12 months, a higher rating under the IVDS Formula is not warranted.

In reaching its conclusions, the Board acknowledges the Veteran's belief that his back disability is more severe than as reflected by the currently assigned rating. While the Board recognizes that the Veteran is competent to describe his observable symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Rather, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disabilities in light of the rating criteria to be more persuasive than his reports regarding the severity of such conditions. 

The Board has also considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected back disability however, the Board finds that his symptomatology has been stable throughout the entire appeal period. Therefore, assigning staged ratings is not warranted. Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017).

In sum, the Board finds that the preponderance of the evidence is against an disability rating in excess of 40 percent for his service-connected back disability for the period from February 11, 2013 to January 11, 2015. Therefore, the benefit of the doubt doctrine is not applicable except as has been applied to the rating assigned herein, and the Veteran's claim for a higher rating must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Ortiz, supra; Gilbert, supra. 

 

 

R. FEINBERG

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Jeremy J. Olsen, 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.