Citation Nr: 21029050 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 14-40 371 DATE: May 12, 2021 ISSUES Entitlement to an increased initial evaluation in excess of 10 percent from October 4, 2001 to September 13, 2013 for degenerative disk disease, degenerative arthritis and herniated nucleus pulposus of the lumbosacral spine (previously rated as low back condition under 5295). Entitlement to an increased evaluation in excess of 20 percent from September 13, 2013 forward for degenerative disc disease, degenerative arthritis and herniated nucleus pulposus of the lumbosacral spine (previously rated as low back condition under 5295). ORDER Entitlement to an increased initial evaluation in excess of 10 percent from October 4, 2001 to September 13, 2013 for degenerative disk disease, degenerative arthritis and herniated nucleus pulposus of the lumbosacral spine (previously rated as low back condition under 5295) is denied. Entitlement to an increased evaluation in excess of 20 percent from September 13, 2013 for degenerative disc disease, degenerative arthritis and herniated nucleus pulposus of the lumbosacral spine (previously rated as low back condition under 5295) is denied. FINDINGS OF FACT 1. For the period from October 4, 2001 to September 13, 2013 Veteran's lower back disability is manifested combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; there was no muscle spasm or guarding resulting in abnormal gait or abnormal spinal contour. There was neither ankylosis nor incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months, nor any objective evidence of neurological manifestations not accounted for in other disabilities. 2. From September 13, 2013, the Veteran's lower back disability is manifested by forward flexion of the thoracolumbar spine more than 30 degrees but not greater than 60 degrees and a combined range of motion of the thoracolumbar spine not greater than 120 degrees; 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. There was neither ankylosis nor any incapacitating episodes during the period on appeal, nor any objective evidence of neurological manifestations. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 10 percent for degenerative disk disease, degenerative arthritis and herniated nucleus pulposus of the lumbosacral spine for the period from October 4, 2001 to September 13, 2013, have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243, 5292, 5293, 5295. 2. The criteria for an increased rating in excess of 20 percent for degenerative disk disease, degenerative arthritis and herniated nucleus pulposus of the lumbosacral spine for the period from September 13, 2013 forward, have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from April 1980 to April 2000. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Veteran provided testimony at a January 2018 Board hearing. The hearing transcript has been associated with the record. The Board remanded this issue in June 2018 and September 2020 for further development. Upon review of the Veteran's claim file, the Board finds that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Therefore, the Board will proceed to the merits of the issue on appeal. When a veteran files a claim for an increased rating, he is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). The record does not reflect that the Veteran has made any implicit or explicit assertions that would suggest that he is unable to obtain and retain gainful employment, and thus a claim for TDIU is not inferred from the record. In that regard, entitlement to special monthly compensation (SMC) can also be found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). However, in this case there is no lay or medical evidence that the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb, blindness or deafness. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). As such, the Board will not infer the issue of entitlement to SMC at this time. Increased Schedular Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 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 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. The determination of whether an increased disability rating is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 (musculoskeletal system) or § 4.73 (muscle injury); 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."). The final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, the United States Court of Appeals for Veterans' Claims (Court) recently addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. The Board also notes recent case law where the Court held that 38 C.F.R. § 4.59 does not solely condition the evaluation based on range of motion measurements for a particular diagnostic code, but rather "it conditions that award on evidence of an actually painful, unstable, or maligned joint or periarticular region and the presence of a compensable evaluation in the applicable diagnostic code." Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016). The Board considers not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his [or her] earning capacity." See 38 U.S.C. § 1155 (2012); Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and the demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992). The terms "mild," "moderate," and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at a just and equitable decision. Additionally, the use of such terminology by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Lumbar Spine Disability Legal Standards In April 2002, the Veteran was initially assigned a 0 percent rating under diagnostic code 5295 for his lumbar spine disability, effective October 4, 2001. In September 2002 the Veteran's rating was increased to a 10 percent rating under diagnostic code 5293, effective October 4, 2001. In June 2014 the diagnostic code for the Veteran's lumbar spine disability was changed to 5243 and at that time there was no change in the percentage assigned. In January 2021 his rating was increased to a 20 percent rating under diagnostic code 5243, effective September 30, 2013. As previously noted, the Veteran's lumbosacral strain was initially rated under Diagnostic Code (DC) 5295, pertinent to lumbosacral strain, under the rating criteria in effect prior to September 26, 2003. In this regard, the Board notes that the rating criteria governing spinal disorders were revised on September 23, 2002 and September 26, 2003. The amendments renumbered the diagnostic codes and created a general rating formula for rating diseases and injuries of the spine, based largely on limitation or loss of motion, as well as other symptoms. VA's General Counsel has held that where a law or regulation changes during the pendency of an appeal, the Board should first determine which version of the law or regulation is more favorable to the veteran. If application of the revised regulation results in a higher rating, the effective date for the higher disability rating can be no earlier than the effective date of the change in the regulation. 38 U.S.C. § 5110 (g). Prior to the effective date of the change in the regulation, the Board can apply only the original version of the regulation. The Veteran's spine was initially rated under 38 C.F.R. § 4.71a, Diagnostic Code 5295, which at the time of the receipt of his increased rating claim, listed the rating criteria for lumbosacral strain. Under DC 5294 for sacro-iliac injury and weakness, or DC 5295, a noncompensable rating was warranted for slight, subjective symptoms only. A 10 percent rating was warranted for painful motion of the lumbar spine. A 20 percent rating was warranted for muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in a standing position. And a maximum, 40 percent rating was warranted for severe symptoms, resulting in listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. Additionally, under the old regulations, DC 5289, applicable prior to September 26, 2003, assigns a 40 percent evaluation for favorable ankylosis of the lumbar spine and a 50 percent evaluation for unfavorable ankylosis of the lumbar spine. 38 C.F.R. § 4.71a, DC 5289 (2002). Prior to September 26, 2003, intervertebral disc syndrome (IVDS) was rated under DC 5293. A noncompensable rating was assigned when the condition was postoperative and cured. A 10 percent rating was assigned for mild symptoms. A 20 percent rating was assigned for moderate symptoms, with recurring attacks. A 40 percent rating was assigned for severe symptoms, with recurring attacks and only intermittent relief. A 60 percent rating was assigned for pronounced disability, with persistent symptoms compatible with sciatic neuropathy which characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief. Prior to September 26, 2003, under DC 5292, limitation of motion of the lumbar spine warrants a 10 percent rating if it is slight, a 20 percent rating if it is moderate, and a 40 percent rating if it is severe. 38 C.F.R. § 4.71a, DC 5292 (2002). Beginning September 26, 2003, schedular ratings for disabilities of the spine are provided by application of the General Rating Formula for Diseases or Injuries of the Spine. 38 C.F.R. § 4.71a. The formula contemplates symptoms such as pain (including whether it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. In June 2014, the RO began rating the appellant's lumbosacral strain under the new rating criteria under DC 5243. The rating was changed to 20 percent disabling effective September 30, 2013. Beginning September 26, 2003, all spine disabilities covered by Diagnostic Codes 5235 to 5242 are rated according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula) based on limitation of motion, or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating. 38 C.F.R. § 4.71a, General Formula. Under the General Formula, the spine is evaluated 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. Id. According to the General Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, combined range of motion of the thoracolumbar spine not greater than 235 degrees, 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. 38 C.F.R. § 4.71a. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. For VA compensation purposes, fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. Id. In addition, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination, assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. 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 thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of the spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2); see also Plate V (2020). The General Formula for Diseases and Injuries of the Spine also, in pertinent part, provide the following Notes: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. 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 neurological symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis). Id. The rating schedule also includes criteria for evaluating intervertebral disc disease (IVDS). When rated based on incapacitating episodes, a 10 percent disability evaluation is warranted for 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 when there are 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 when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 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. 38 C.F.R. § 4.71a, DC 5243. The Board notes the Veteran's lumbar back disability is currently rated using range of motion rather than IVDS because the former results in a higher rating. VA's schedule of musculoskeletal rating changes, found in 38 C.F.R. § 4.71a, was modified with the changes in effect on February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). A small modification was also made to Diagnostic Code 5003, which was announced in a corrected final rule. See 85 Fed. Reg. 85523 (Dec. 29, 2020). Pertinent to this particular appeal, Diagnostic Code 5003 was modified in its title to now read "Degenerative arthritis, other than post-traumatic." Diagnostic Code 5242 is now titled "Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010)." The title of Diagnostic Code 5243 is now "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses." Id. No other changes in 38 C.F.R. § 4.71a are applicable for this particular appeal. Lower Back Disability Evidence and Analysis The Veteran seeks a higher evaluation for his service-connected degenerative disk disease, degenerative arthritis and herniated nucleus pulposus of the lumbosacral spine. From October 4, 2001 to September 13, 2013 the Veteran has a rating of 10 percent and from September 13, 2013 forward he has a rating of 20 percent. The Veteran has asserted that higher evaluations are warranted because of the degree of pain and physical limitations he endures on a daily basis, per his lay statements. The Veteran was first afforded a VA examination in June 2002 for his back disability. The Veteran complained that sometimes his back would get sore and the last time that it had occurred was a week prior to the examination. He reported that his back pain resolved with Advil. The Veteran also reported that he would get tingling in his legs sometimes. Objective examination showed range of motion of flexion to 90 degrees, extension to 25 degrees, left lateral flexion to 30 degrees, right lateral flexion to 25 degrees, and bilateral rotation to 30 degrees. The Veteran did not complain of back pain on straight leg raising, abduction or external rotation. Examination revealed normal posture and gait. There was no extremity atrophy noted. The examiner's assessment was degenerative disc disease, degenerative arthritis and herniated nucleus pulpous of the lumbosacral spine. VA treatment records reflect that during the course of the appeal the Veteran has received ongoing treatment for back pain. A physical therapy note from April 2012 reflets that the Veteran reported that his symptoms were worse with standing and getting up from sitting and sleeping. The Veteran was given instructions for a home exercise routine and the use of a TEN's unit. A February 2014 urgent care note reflects that the Veteran was treated for a tight and sore back. At that time the examiner found tenderness to the midline lower lumbosacral spine and lower L5 muscles. The Veteran was afforded a VA examination in May 2014. The Veteran complained of pain with prolonged walking. He reported that he has had to attend physical therapy due to his back pain. Objective examination showed range of motion of flexion to 90 degrees, extension to 25 degrees, left lateral flexion to 30 degrees, right lateral flexion to 25 degrees, and bilateral rotation to 30 degrees. The examiner reported no pain on active range of motion, without additional limitations after repetitive use. There was mild tenderness on palpation of the thoracolumbar area. There was no guarding, no muscle spasm and no abnormal gait or spinal contour. There was no evidence of intervertebral disc syndrome (IVDS). Strength in the lower extremities was normal. Sensory exam was normal. Reflexes were normal. The examiner reported that the Veteran had functional loss after repetitive use in the form of less movement than normal. The examination was negative for signs and symptoms due to radiculopathy and bowel issues, and no ankylosis was reported. The Veteran was not using any assistive devices. The examiner's assessment was degenerative arthritis of the spine and advanced degenerative spondylosis and degenerative facet arthrosis. The Veteran was afforded a VA examination in January 2016. The Veteran reported pain in his center and left lower back. He reported that his left lower back pain goes into his left buttock. He did not report any flare-ups of his thoracolumbar back. Objective examination showed range of motion of flexion to 90 degrees, extension to 25 degrees, left lateral flexion to 25 degrees, right lateral flexion to 25 degrees, and bilateral rotation to 30 degrees. The examiner reported that the Veteran's left lateral flexion leads to pain which can contribute to his functional loss. There was no evidence of pain with weight bearing. There were additional limitations after repetitive use. There was mild tenderness on palpation of the thoracolumbar area. There was no guarding or no muscle spasm. There was no evidence of IVDS. Strength in the lower extremities was normal. Sensory exam was normal. Reflexes were normal. The examination was negative for signs and symptoms due to radiculopathy and bowel issues, and no ankylosis was reported. The Veteran was reported to regularly use a knee brace. The examiner's assessment was lumbar degenerative disc disease. At the January 2018 hearing the Veteran testified that he experiences flare ups of his back disability, and that his January 2016 VA examination failed to report on such flare ups. The Veteran also testified that he experienced symptoms of radiculopathy in his legs. Following the testimony, this matter was remanded in September 2018 for the Veteran to be afforded a new VA examination to assess the severity of his lower back disability. In October 2019 a Disability Benefits Questionnaire (DBQ) was completed using the Acceptable Clinical Evidence (ACE) practices. No in person examination of the Veteran was conducted. The examiner reported range of motion of flexion to 90 degrees, extension to 30 degrees, left lateral flexion to 30 degrees, right lateral flexion to 30 degrees, and bilateral rotation to 30 degrees. The examiner reported strength in the lower extremities was normal and sensory exam was normal. Reflexes were noted normal. The examiner reported no signs and symptoms due to radiculopathy and bowel issues, and no ankylosis was reported. The examiner reported that the Veteran did not have IVDS. The examiner's assessment was degenerative arthritis of the lumbosacral spine a L4-L5 and L5-S1. In September 2020 the Board determined that the use of the ACE method was insufficient as it failed to comply with the Board's September 2018 remand instructions that an in- person examination of the Veteran be conducted. Therefore, the matter was remanded again for the Veteran to be afforded a new VA examination for his low back disability. In December 2020 the Board-directed VA examination was conducted. The Veteran reported flare ups which would cause rare intermittent pain in his bilateral lower legs. He also reported that he could not do any prolonged activity such as lifting or bending. Initial range of motion was 90 degrees in forward flexion, 15 degrees in extension, and 20 degree right lateral flexion, 15 degrees left lateral flexion, and 30 degrees right and left lateral rotation. No pain was noted during the initial range of motion testing. There was objective evidence or localized tenderness or pain on palpation of the lower back. After repetitive use testing, range of motion was 65 degrees in forward flexion, 15 degrees in extension, and 15 degrees each in right and left lateral flexion, 15 degrees on right lateral rotation and 20 degrees on left lateral rotation. Estimated range of motion after repeated use over time was 50 degrees in forward flexion, 15 degrees in extension, and 15 degrees each in right and left lateral flexion, and right and left lateral rotation. Estimated range of motion after a flareup was 45 degrees in forward flexion, 15 degrees in extension, and 10 degrees in right lateral flexion, 15 degrees in left lateral flexion, and 15 degrees in right and left lateral rotation. There was no guarding or muscle spasm noted. Muscle strength was five on a scale of five. No ankylosis was noted and there were no neurological abnormalities noted. Sensory and reflex examinations were normal. No IVDS was noted. The Veteran was not reported to be using any assistive device. 1. Entitlement to an increased initial evaluation in excess of 10 percent from October 4, 2001 to September 13, 2013 for degenerative disk disease, degenerative arthritis and herniated nucleus pulposus of the lumbosacral spine (previously rated as low back condition under 5295). In consideration of the above, for the period from October 4, 2001 to September 13, 2013, the Board finds that the Veteran's symptoms most closely approximate the criteria for the 10 percent disability level. An evaluation of 10 percent may be granted 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, for muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. The Board notes the combined range of motion of 230 degrees during this period, at the June 2002 VA examination. The assigned rating also contemplates the evidence of painful motion upon examination. A higher rating of 20 percent under is not warranted because such symptomatology has not been shown for the relevant time period which demonstrates the combined range of motion of the thoracolumbar spine greater than 235 degrees. Nor does the evidence show that the Veteran suffered from muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Additionally, there has been no evidence of incapacitating episodes of intervertebral disc syndrome having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Therefore, a higher, 20 percent disability rating for the relevant period is not warranted. Consideration under the Old Criteria The Board has also considered the rating criteria which were in effect prior to September 2003 in rendering this decision. The evidence of record from the June 2002 VA examination revealed none of the finings needed for a rating in excess of 10 percent under 5292, 5293 or 5295. First, based on the results from the June 2002 VA examination the objective findings of range of motion testing showed forward flexion to 90 degrees, extension to 25 degrees, left lateral flexion to 30 degrees, right lateral flexion to 25 degrees, and bilateral rotation to 30 degrees. The Veteran did not complain of back pain on straight leg raising, abduction or external rotation. The evidence shows the Veteran had a slight limitation of motion. A higher rating of 20 percent is not warranted under Diagnostic Code 5242 because such symptomatology has not been shown which demonstrates a moderate limitation of motion of the lumbosacral spine. Furthermore, there were no indications of a finding of a diagnosis of IVDS during this period on appeal so as to warrant a rating in excess of 10 percent under DC 5293. Additionally, there was no indication of nerve involvement and no neurologic impairment was reported. Additionally, a rating in excess of 10 percent under Diagnostic Code 5295 is not warranted the examination did not indicate that the examiner found spasms of the back. A rating of 20 percent is not warranted because such symptomatology has not been shown for the relevant time period which demonstrates muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. Given the above, the Veteran's low back disability did not warrant a disability evaluation in excess of 10 percent for the period from October 4, 2001 to September 13, 2013 under the old criteria codified at 38 C.F.R. § 4.71a, DCs 5292, 5293, 5295 (2002). Moreover, as the medical evidence for the period in question did not indicate vertebral fracture or ankylosis, a higher evaluation is not warranted under 38 C.F.R. § 4.71a, DCs 5285, 5286, or 5289 (2002). 2. Entitlement to an increased evaluation in excess of 20 percent from September 13, 2013 forward for degenerative disc disease, degenerative arthritis and herniated nucleus pulposus of the lumbosacral spine (previously rated as low back condition under 5295). For the period from September 13, 2013 forward, the Board finds that the Veteran's symptoms most closely approximate the criteria for the 20 percent disability level. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, 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 incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. The Board notes the 20 percent rating is based upon forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees as well as the recorded combined range of motion of 115 degrees during this period at the December 2020 VA examination. The assigned rating also contemplates the objective evidence of painful motion upon examination A higher evaluation of 40 percent is not warranted because such symptomatology has not been shown for the relevant time period which demonstrates forward flexion of the thoracolumbar spine of 30 degrees or less. For this Veteran, ankylosis of any kind has never been shown since diagnosis. Additionally, there has been no evidence of incapacitating episodes of intervertebral disc syndrome with incapacitating episodes or periods of bed rest prescribed by a physician due to IVDS. Therefore, a higher, 40 percent disability rating for the relevant period is not warranted. Conclusion In reaching the above conclusion, the Board has not overlooked the Veteran's statements and testimony with regard to the severity of his service-connected back disability. In this regard, the Veteran was competent to report on factual matters of which he had firsthand knowledge, e.g., flare ups and limited ability to engage in prolonged activity such as lifting or bending. See Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Lay evidence was provided by the Veteran through submitted statements, his Board hearing testimony, treatment records and during the course of his VA examinations. However, with respect to the Rating Schedule, where the criteria set forth therein require medical expertise to diagnose or observe, which the Veteran has not been shown to have or where these types of findings are not readily observable by a lay person, the Board has accorded greater probative weight to objective medical findings and opinions provided by the Veteran's treatment reports and his VA examination reports. See Woehlaert, 21 Vet. App. at 456 (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, the Board finds that the preponderance of evidence is against assigning a rating in excess of 10 percent for the thoracolumbar back from October 4, 2001 to September 13, 2013, and in excess of 20 percent from September 13, 2013 forward. See 38 C.F.R. § 4.71(a), Diagnostic Code 5243; see also 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). As the Board concludes that the preponderance of the evidence is against the claim for an increased disability rating for the Veteran's service-connected thoracolumbar back disability, the benefit of the doubt doctrine is not for application, and an increased rating is not warranted. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). All potentially applicable diagnostic codes have been considered, and there is no basis to assign an alternative evaluation for the Veteran's lower back disability other than that discussed above. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Nettey, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED