Citation Nr: 21029042 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-39 087 DATE: May 12, 2021 ORDER Entitlement to a rating in excess of 20 percent for degenerative disc disease, facet joint arthropathy, intervertebral disc syndrome (previously rated as chronic low back strain) from January 2010 to October 2019, is denied. Entitlement to a rating in excess of 60 percent, but no higher, for degenerative disc disease, facet joint arthropathy, intervertebral disc syndrome (previously rated as chronic low back strain) from October 28, 2019 is granted. FINDINGS OF FACT 1. From January 3, 2010 to October 27, 2019, the Veteran's back disability was manifested by 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 is not greater than 120 degrees; or when there are muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 2. From October 28, 2019, the Veteran's back disability was manifested by incapacitating episodes having a total duration of at least six weeks during the past twelve months. CONCLUSIONS OF LAW 1. From January 3, 2010 to October 27, 2019, the criteria for a rating in excess of 20 percent for the Veteran's back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.71a, Diagnostic Codes 5242, 5243. 2. From October 28, 2019, the criteria for a rating of 60 percent, but no higher for the Veteran's back disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.71a, Diagnostic Codes 5242, 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1978 to October 1987. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes the Veteran is in receipt of a 100 percent rating from December 20, 2018. This matter was previously before the Board in April 2019 when it was remanded for further development. In this regard, the Board finds that the post-Remand development substantially complied with the Remand requests. Stegall v. West, 11 Vet. App. 268 (1998). As an initial matter, the Board notes that during the pendency of the appeal, the RO in an April 2020 Rating Decision increased the Veteran's back disability rating to 40 percent disabling effective October 28, 2019. Increased Rating Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: 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 is not greater than 120 degrees; or when there are muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. Id. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Note (1) to the General Rating Formula provides that associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately under an appropriate diagnostic code. Id. The Veteran's service-connected back disability has also been evaluated under Diagnostic Code 5243, which assigns ratings for intervertebral disc syndrome (IVDS) based upon incapacitating episodes. 38 C.F.R. § 4.71a. IVDS may be evaluated either under the General Rating Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes, depending on which method results in the higher evaluation when all disabilities are combined. Under the Formula for Rating IVDS Based on Incapacitating Episodes, Diagnostic Code 5243 provides a 20 percent rating for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months; a 40 rating for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months; and a 60 percent rating for incapacitating episodes having a total duration of at least six weeks during the past twelve months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Note (1) to Diagnostic Code 5243 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. Id. 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 [or 4.73] criteria."). Where a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997) (holding that 38 C.F.R. § 4.40 and 4.45 do not apply and that a higher rating is not warranted for painful motion or functional loss when the maximum schedular disability rating based on limitation of motion is in effect). 1. Entitlement to a rating in excess of 20 percent for degenerative disc disease, facet joint arthropathy, intervertebral disc syndrome (previously rated as chronic low back strain) from January 3, 2010 to October 27, 2019, is denied. The Veteran contends that his service-connected back disability meets the criteria for a rating in excess of 20 percent. Based on a review of the record, the Board finds that the most probative evidence of record shows the Veteran's back disability has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine. In addition, the record does not show a diagnosis IVDS during this rating period, therefore a higher rating under such diagnostic code is not applicable. The Board has also considered separate evaluations for neurological manifestations of the Veteran's service-connected lumbar disability. The evidence does not show that the Veteran has radiculopathy, or any other neurological abnormalities associated with the service-connected back disability for which he is not already service connected. The Board acknowledges the Veteran's belief that his symptoms are of such severity as to warrant a higher rating for his back disability. In this case, the Veteran is competent to report symptoms because that requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Therefore, the Board finds the examination reports to be more probative than the Veteran's subjective evidence of complaints regarding the severity of symptomatology because they provide objective medical evidence of the manifestations of the service-connected disabilities. Cartright v. Derwinski, 2 Vet. App. 24 (1991). Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating higher than 20 percent from January 3, 2010 to October 27, 2019. This finding does not suggest that the Veteran does not have back problems, simply the nature and extent of the problem is within the 20 percent evaluations based on the criteria, nothing more. A 20 percent back disability will cause the Veteran many problems. In reaching this conclusion, 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 claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Entitlement to a rating in excess of 60 percent, but no higher, for degenerative disc disease, facet joint arthropathy, intervertebral disc syndrome (previously rated as chronic low back strain) from October 28, 2019 is granted. The Board notes that during the pendency of the appeal, the RO in an April 2020 rating decision increased the Veteran's rating for his back disability to 40 percent disabling effective October 28, 2019. A VA examination in December 2019 showed the Veteran had incapacitating episodes of bed rest for more than 6 weeks in the last year because of his IVDS symptoms. As such, a rating of 60 percent, but no higher is warranted. A higher rating is not warranted as the evidence does not show that the Veteran had ankylosis of the thoracolumbar spine. The Board has also considered separate evaluations for neurological manifestations of the Veteran's service-connected lumbar disability. The evidence does not show that the Veteran has radiculopathy, or any other neurological abnormalities associated with the service-connected back disability for which he is not already service connected. The Board acknowledges the Veteran's belief that his symptoms are of such severity as to warrant a higher rating for his back disability. In this case, the Veteran is competent to report symptoms because that requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating higher than 60 percent from October 28, 2019. This finding does not suggest that the Veteran does not have back problems, simply the nature and extent of the problem is within the 60 percent evaluations based on the criteria, nothing more. In reaching this conclusion, 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 claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Holcombe 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.