Citation Nr: 21028561 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 15-18 599 DATE: May 11, 2021 ORDER An initial disability rating in excess of 10 percent prior to January 22, 2020, and in excess of 20 percent thereafter, for degenerative arthritis of the lumbar spine is denied. An initial rating in excess of 10 percent for limitation of extension of the left thigh is denied. An initial compensable rating for left hip bursitis is denied. FINDINGS OF FACT 1. For the appeal period prior to January 22, 2020, the Veteran's degenerative arthritis of the lumbar spine did not result in forward flexion limited to 60 degrees or less or a combined range of motion of 120 degrees or less, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal contour, ankylosis, intervertebral disc syndrome (IVDS), or associated objective neurological abnormalities. 2. As of January 22, 2020, the Veteran's degenerative arthritis of the lumbar spine was manifested by forward flexion greater than 30 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis, IVDS, or associated objective neurological abnormalities. 3. The Veteran's left thigh extension, at worst, is limited to 5 degrees. 4. The Veteran's left hip flexion is limited to 110 degrees during flare-ups. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent prior to January 22, 2020, and in excess of 20 percent thereafter for degenerative arthritis of the lumbar spine 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 (DC) 5242. 2. The criteria for a rating in excess of 10 percent for left thigh limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5251. 3. The criteria for a compensable rating for left hip limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5252. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from October 1989 to March 2012. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2012 by the Department of Veterans Affairs (VA) Regional Office in Baltimore, Maryland. This appeal was previously before the Board in July 2018 and May 2020, at which times they were remanded for further development. The Board finds that there has been substantial compliance with its remand orders. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers on a veteran the right to VA's compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms). Finally, the Board notes that the Veteran was initially represented by a private attorney in these matters. However, VA subsequently cancelled that attorney's accreditation; therefore, he was no longer allowed to assist claimants in the preparation, presentation, and prosecution of claims for VA benefits. VA informed the Veteran of this fact in an April 2021 letter and afforded her the opportunity to appoint a new representative; however, the Veteran has not subsequently chosen to appoint a new representative. As such, the Veteran is recognized as proceeding pro se in her appeal. INCREASED RATING 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. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999). 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. 1. Entitlement to an initial rating in excess of 10 percent prior to January 22, 2020, and in excess of 20 percent thereafter for degenerative arthritis of the lumbar spine Since April 1, 2012, the date of service connection, the Veteran's back disability has been rated as 10 percent disabling, which was increased to 20 percent disabling as of January 22, 2020, pursuant to DC 5242, which provides that degenerative arthritis of the spine is evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this DC was not changed. 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. Such provides for a 10 percent rating where forward flexion of the thoracolumbar spine is greater than 60 degrees but no 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. 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. IVDS may be evaluated under either the General Rating Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Rating Formula), whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.25 (combined ratings table). As an initial matter, the Board notes that the record does not show, and the Veteran does not contend, that her back disability resulted in IVDS with incapacitating episodes as defined by VA regulations. Therefore, the IVDS Rating Formula is inapplicable and higher initial ratings for his back disability are not warranted under such criteria. As pertinent to the General Rating Formula, in April 2012, the Veteran underwent a VA examination, at which time she reported discomfort in the lower back after prolonged standing, walking, bending, and lifting. She did not report any flare-ups. During range of motion testing, flexion was limited to 70 degrees with no objective evidence of painful motion and no change in range of motion after three repetitions, extension was limited to 15 degrees, right and left later flexion were limited to 20 degrees each, and right and left lateral rotation were limited to 25 degrees each. Range of motion of all motions combined was 175. The examiner noted that the Veteran's functional loss after repetitive use included less movement than usual. There was no tenderness or pain to palpation for joints or soft tissue of the lumbar spine. Muscle strength testing, reflex exam, and sensory exam were all normal. The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. She also did not have any other neurologic abnormalities or findings related to a lumbar spine condition. The Veteran did not have IVDS. The Veteran was afforded another VA examination in January 2020, at which time she reported back pain that radiated down to her left leg. The Veteran reported that she experienced flare-ups of the lumbar spine, which she reported occurred three times a week and lasted a few hours. On range of motion exercises, flexion was limited to 55 degrees, however, the examiner noted that suboptimal effort by the Veteran was a reason for her range of motion testing results. No pain was noted on the examination. However, the examiner noted that there was pain on palpation in the lower back that was moderate in severity. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion after three repetitions. She did not have guarding or muscle spasms of the lumbar spine. Muscle strength testing, reflex exam, and sensory exam were all normal. There was no muscle atrophy. The examiner noted that the Veteran had signs or symptoms due to radiculopathy that consisted of mild paresthesias and/or dysesthesias in the left lower extremity. The Veteran did not have any other signs or symptoms of radiculopathy. The examiner further noted that the Veteran had moderate radiculopathy involving the left femoral nerve. There was no ankylosis of the spine. The Veteran did not have any other neurologic abnormalities or findings related to a lumbar spine condition or IVDS. The Veteran was afforded another VA examination in December 2020, at which time she reported back pain. She reported flare-ups of the back that occurred three times a week that last approximately an hour each time. On range of motion testing, flexion was limited to 60 degrees with pain that was noted on the examination, but it did not result in or cause functional loss. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion after three repetitions. The examiner noted that the examination was being conducted during a flare-up and the range of motion testing reflected motion during a flare-up. There was no guarding or muscle spasm of the lumbar spine. She did not have any muscle atrophy. Muscle strength, reflex, and sensory testing were all normal. The examiner noted that the Veteran did not have any radicular pain or any other signs or symptoms due to radiculopathy. She did not have ankylosis of the spine. The Veteran did not have any other neurologic abnormalities or findings related to a lumbar spine condition or IVDS. VA treatment records document that the Veteran complained of back pain in February 2020 and requested a refill of medication. See February 2020 VA treatment record. Based on the foregoing, the Board finds that an initial rating in excess of 10 percent prior to January 22, 2020, and in excess of 20 percent thereafter for the Veteran's back disability is not warranted. Specifically, prior to January 22, 2020, the evidence of record does not reveal that forward flexion of the thoracolumbar spine was limited to 60 degrees or less or the combined range of motion was limited to 120 degrees or less, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. Furthermore, there was no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, or ankylosis. However, as of January 22, 2020, the date of VA examination, the Veteran's forward flexion was limited to 55 degrees. Nonetheless, a rating in excess of 20 percent as of such date is not warranted as there was no evidence showing forward flexion of the lumbar spine was limited to 30 degrees or less, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, or ankylosis. The Board has also considered whether separate ratings for associated objective neurologic abnormalities, other than the separately rated radiculopathy of the left lower extremity, are warranted pursuant to Note (1) of the General Rating Formula. However, as there is no evidence that her service-connected back disability results in such manifestations, such additional separate ratings are not warranted. 2. Entitlement to an initial rating in excess of 10 percent for limitation of extension of the left thigh 3. Entitlement to an initial compensable rating for left hip bursitis The Veteran contends that she is entitled to increased ratings for her left thigh and left hip disabilities. The Veteran is currently assigned a 10 percent rating for her left thigh limitation of extension, pursuant to DC 5251, effective April 1, 2012. She is assigned a noncompensable rating for her left hip bursitis, pursuant to DC 5252. Under DC 5251, regarding limitation of extension of the thigh, a maximum rating of 10 percent is assigned if extension is limited to five degrees. DC 5252 pertains to limitation of flexion of the hip and sets forth a 10 percent rating if flexion is limited to 45 degrees, a 20 percent rating if flexion is limited to 30 degrees, and a 30 percent rating if flexion is limited to 20 degrees. The maximum rating of 40 percent is reserved for when flexion is limited to 10 degrees. Normally, extension is to zero degrees and flexion is to 125 degrees. 38 C.F.R. § 4.71, Plate II. The Veteran was afforded a VA examination for her left hip and thigh in April 2012. She reported discomfort in her left hip on prolonged standing and walking. The Veteran did not report flare-ups of the left hip or thigh. Left hip flexion was limited to 120 degrees with no evidence of painful motion. Left hip extension was limited to 5 degrees with no objective evidence of painful motion. Examiner noted that abduction was not lost beyond 10 degrees, adduction was not limited to the extent to prevent Veteran from crossing legs, and rotation was not limited to the extent to prevent her from toe-out more than 15 degrees. The Veteran was able to repetitive-use testing with three repetitions without additional loss. Pain on palpation of left hip was noted. Muscle strength testing was normal. The Veteran was afforded another VA examination for her left hip and thigh in January 2020 during which the Veteran reported pain, difficulty laying on the left side, and radiating pain. Range of motion testing was normal for all motions. Pain was noted on examination during rest. There was objective evidence of mild pain on palpation of the left hip. She was able to perform repetitive-use testing with at least three repetitions. Muscle strength testing was normal. There was no ankylosis. The Veteran was afforded another VA examination for left hip and thigh in December 2020 during which the Veteran reported hip pain. The Veteran reported flare-ups of the hip or thigh. Specifically, she reported flare-ups of the left hip occurred daily, that they were moderate-severe, and lasted approximately 30 minutes to an hour. On range of motion testing of the left hip and thigh, flexion was limited to 110 degrees, extension was limited to 15 degrees, abduction was limited to 45 degrees, adduction was limited to 25 degrees, external rotation was limited to 50 degrees, and internal rotation was limited to 40 degrees. Pain was noted on examination but did not result in or cause functional loss. The examiner estimated that during flare-ups, flexion was limited to 105 degrees, extension was limited to 10 degrees, abduction was limited to 30 degrees, adduction was limited to 25 degrees, external rotation was limited to 45 degrees, and internal rotation was limited to 40 degrees. Muscle strength testing was normal. There was no muscle atrophy or ankylosis of the left hip. The Veteran is already receiving a 10 percent rating for left thigh limitation of extension under DC 5251. As the 10 percent rating is the highest schedular evaluation allowed under the regulations for limitation of extension of the thigh, a rating in excess of 10 percent is not warranted. The Board has also considered whether higher and/or separate ratings are warranted under any other applicable diagnostic code but finds that higher and/or separate ratings are not warranted under DCs 5250, 5254, or 5255. 38 C.F.R. § 4.71a. Upon review, the Board finds that a compensable evaluation is not warranted for Veteran's left hip limitation of flexion under DC 5252. For a 10 percent rating under DC 5252, flexion must be limited to 45 degrees. Here, the record reflects that Veteran's left hip flexion was estimated to be limited to 110 degrees during a flare-up, which was the most restrictive range of motion documented in the medical record. Therefore, as the record does not show a limitation less than 60 degrees for flexion, a compensable rating is not warranted. Lastly, the Veteran has not been diagnosed with favorable or unfavorable ankylosis (or the functional equivalent thereof), nor has she been shown to have flail joint, or impairment of the femur. Additionally, the Veteran is already service connected for limitation of abduction for her left hip. Accordingly, higher or separate ratings are not available under DCs 5250, 5253, 5254, and 5255, respectively. In reaching its conclusions in the instant case, the Board acknowledges the Veteran's belief that her disabilities are more severe than as reflected by the current assigned disability ratings. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to describe her symptomatology, she 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). Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged her reported symptoms, and described the manifestations of such disabilities in light of the rating criteria to be more persuasive than her own reports regarding the severity of her disabilities. The Board has also considered whether additional staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected disabilities; however, the Board finds that her symptomatology has been stable throughout each period on appeal. In reaching its determinations herein, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, such doctrine is inapplicable in the instant appeal and the claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hammad Rasul, 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.