Citation Nr: 21029075 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-09 187 DATE: May 12, 2021 ORDER The issue of entitlement to service connection for bilateral hearing loss is dismissed as moot. Entitlement to a disability rating in excess of 10 percent for low back strain with degenerative disc disease, prior to January 29, 2016, is denied. Entitlement to a disability rating in excess of 20 percent for low back strain with degenerative disc disease, from January 29, 2016, is denied. FINDINGS OF FACT 1. In a November 2020 rating decision issued before the promulgation of a decision in this appeal, the agency of original jurisdiction (AOJ) granted service connection for bilateral hearing loss, representing a full grant of the benefit sought on appeal. 2. Prior to January 29, 2016, the Veteran's low back strain with degenerative disc disease did not manifest as forward flexion of the thoracolumbar spine 60 degrees or less; 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. 3. From January 29, 2016, the Veteran's low back strain with degenerative disc disease has not manifested as forward flexion of the thoracolumbar spine 30 degrees or less, ankylosis of the entire spine, or incapacitating episodes. CONCLUSIONS OF LAW 1. The appeal is dismissed as there remains no disagreement of law or fact on appeal as the AOJ granted the benefit sought on appeal in full and rendered moot the claim of service connection for bilateral hearing loss. 38 U.S.C. § 7105(d). 2. Prior to January 29, 2016, the criteria for an increased disability rating in excess of 10 percent for low back strain with degenerative disc disease are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.71a, Diagnostic Codes 5242-5237. 3. From January 29, 2016, the criteria for an increased disability rating in excess of 20 percent for low back strain with degenerative disc disease are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.71a, Diagnostic Codes 5242-5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1977 to January 2002. This case is before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified at a Central Office Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Board remanded this case for further development in February 2020. The Veteran's increased rating claim was remanded by the Board in February 2020 to obtain treatment records from his primary care physician, physical therapist, and chiropractor. With regard to these treatment records, the RO sent a letter to the Veteran in February 2020, and again in March 2020, requesting that he complete and return a VA Form 21-4142, Authorization and Consent to Release Information, so that records from the private medical providers could be obtained. The letter also informed the Veteran that he may want to obtain and send VA the information himself. The Veteran did not return the signed release or submit private medical records. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that VA's duty to assist is not a one-way street; if the Veteran wishes help he cannot passively wait for it in circumstances where his own actions are essential in obtaining putative evidence). The Veteran's failure to return the signed release prevented the RO from taking any further action. Under these circumstances, the Board finds that there has been substantial compliance with its prior remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 1. Entitlement to service connection for bilateral hearing loss. After completing the development requested in the February 2020 remand, the AOJ, in a November 2020 rating decision, granted service connection for left hear hearing loss effective December 23, 2014 and for bilateral hearing loss effective November 3, 2020. Although the AOJ incorrectly continued to adjudicate the issue of entitlement to service connection for right ear hearing loss prior to November 3, 2020. The Veteran did not thereafter express any disagreement with the effective date assigned. Therefore, the November 2020 rating decision represents a full grant of the benefit sought on the Veteran's service connection claim that was on appeal. There remains no disagreement of law or fact for the Board to resolve; therefore, the Board lacks jurisdiction over this issue, and the appeal is dismissed. 38 U.S.C. § 7105(d). 2. Entitlement to a disability rating in excess of 10 percent for low back strain with degenerative disc disease, prior to January 29, 2016. 3. Entitlement to a disability rating in excess of 20 percent for low back strain with degenerative disc disease, from January 29, 2016. Disability ratings are assigned under a schedule for rating disabilities and based on a comparison of the veteran's symptoms to the criteria in the rating schedule. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability evaluations are determined by assessing the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the ratings schedule. Individual disabilities are assigned separate Diagnostic Codes, and ratings are based on the average impairment of earning capacity. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2. If there is a question as to which evaluation should be applied to the veteran's disability, 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. The primary focus in a claim for increased rating is the present level of disability. Although the overall history of the veteran's disability shall be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, a staged rating is warranted if the evidence demonstrates distinct periods of time in which a service-connected disability exhibited diverse symptoms meeting the criteria for different ratings throughout the course of the appeal. Fenderson v. West, 12 Vet. App. 119, 125-126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the standard 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. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Unfavorable ankylosis is defined as "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." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. Additionally, if there is evidence of intervertebral disc syndrome (IVDS), Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 6; Diagnostic Code 5243. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. The rating criteria for IVDS were amended, effective February 7, 2021. See 85 Fed. Reg. 76453 (February 7, 2021) (codified at 38 C.F.R. § 4.71a). The revised criteria provide that a rating under DC 5243 for IVDS is assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; and that DC 5242 be assigned for all other disc diagnoses. When amended regulations expressly state an effective date and do not include any provision for retroactive applicability, application of the revised regulations prior to the stated effective date is precluded. 38 U.S.C. § 5110(g); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997); VAOPGCPREC 3-2000. Therefore, as the amendment discussed above has a specified effective date without provision for retroactive application, the amendment may not be applied prior to its effective date. As of the effective date, February 7, 2021, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. The Veteran's low back disability is evaluated under 38 C.F.R. § 4.71a, Diagnostic Codes 5242-5237. In the assignment of diagnostic codes, hyphenated numbers may be used. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned. In the selection of code numbers, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With diseases, preference is to be given to the number assigned to the disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27. Here, Diagnostic Code 5237 sets forth the criteria for rating lumbosacral or cervical strain and Diagnostic Code 5242 sets forth the criteria for degenerative arthritis of the spine. Effective February 7, 2021, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, Diagnostic Code 5242 were amended. However, the amendment changed only the title of the regulation from "degenerative arthritis of the spine" to "degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome." No changes were made to the General Rating Formula. The Veteran's low back disability is currently evaluated as 10 percent disabling from December 23, 2014 to January 28, 2016, and as 20 percent disabling thereafter. As to each of the periods for consideration, the Veteran essentially contends that his low back disability has been more disabling than contemplated by the assigned evaluations. The question for the Board, therefore, is whether the Veteran's disability picture more nearly approximated the criteria for a higher evaluation. Treatment records dated from January 2015 to February 2016 show that the Veteran was seen for physical therapy. He complained of increased pain with sitting, bending, and lifting. There was muscle spasms and tenderness on the lumbar spine. In May 2015, the Veteran was afforded a VA examination for back (thoracolumbar spine) conditions, during which he reported being treated by primary care physician, chiropractor, and physical therapist, which was very effective at relieving his back pain. He was also prescribed Flexeril and Naprosyn. He worked full time performing office work and his job duties involved sitting at a desk with paperwork and computer work. His back condition did not impact his ability to perform these duties. He reported flare-ups in that his back pain was occasionally worse with lifting or bicycling. He stated "I will adjust my exercise regimen when I feel a twinge in my back. When it flares up I will rest the back and take a Flexeril and Naprosyn." Initial range of motion testing (ROM) was all normal and revealed forward flexion of 90 degrees; extension of 30 degrees; right and left lateral flexion of 30 degrees; and right and left lateral rotation of 30 degrees. It was indicated that there was no evidence of pain on weight-bearing, and there was no objective evidence of localized tenderness on palpation over the lumbar spine. The Veteran was able to perform repetitive use testing with at least three repetitions, and there was no additional loss of function or range of motion. The Veteran was not examined after repetitive use over time or during a flare-up and the examiner did not provide an opinion concerning additional functional loss after repetitive use over time or due to flare-ups. The examiner indicated that there was no muscle spasm. Muscle strength was normal, and there was no muscle atrophy. Deep tendon reflexes and sensory examinations were also normal. Straight-leg raising test was negative, bilaterally. There was no ankylosis or signs or symptoms due to radiculopathy. It was indicated that the Veteran did not have IVDS. It was indicated that the Veteran occasionally used a non-prescription lifting brace when he was weightlifting. The diagnosis was mid degenerative disc disease with no concerning acute findings. A January 29, 2016 Back Conditions Disability Benefits Questionnaire (DBQ) prepared by the Veteran's private physician shows the Veteran's report of recurrent back pain and moderate functional limitation. He reported flare-ups in that occasionally, due to lifting motion, he suffered acute pain requiring muscle relaxant (Flexeril) and visits to the craniosacral physical therapist and chiropractor in addition to his regular visits. Functional impairment was inability to lift "excessive heavy" items over 100 pounds. Initial range of motion testing revealed forward flexion of 90 degrees; extension of 30 degrees; right and left lateral flexion of 30 degrees; and right and left lateral rotation of 30 degrees. The Veteran was able to perform repetitive use testing with at least three repetitions and there was no change in RO after repetitive testing. There was no pain noted on active, passive, and or repetitive use testing, in weight-bearing or non weight-bearing, resulting in functional loss or additional limitation of ROM. There was no localized tenderness or pain to palpation of the joints or soft tissue. However, there was guarding or muscle spasms of the thoracolumbar spine and abnormal spinal contour, that is, mild scoliosis. With regard to functional loss, the examiner noted that "the Veteran is extremely careful not to re-inure his back although it sometimes happens anyway. He exercises a significant amount to try to ensure minimum injuries and minimum pain when injury comes." The examiner further noted that during the flare-ups, the Veteran was mobile, though with pain, and functional as he tries to stay active. Muscle strength was normal, and there was no muscle atrophy. Deep tendon reflexes and sensory examinations were also normal. Straight-leg raising test was negative, bilaterally. There was no ankylosis. Mild paresthesias and/or dysesthesias was present in the bilateral lower extremities but not due to radiculopathy. There were no other neurological abnormalities. The examiner indicated that the Veteran did not have IVDS. There was mild degenerative disc disease on imaging studies. As to the functional impact on the Veteran's ability to perform occupational task, the examiner indicated that the Veteran should not lift over 50 pounds. During the Veteran's January 2020 Board hearing, he stated that he performed regular back exercises, twice per week, and periodically saw his chiropractor, to maintain his back condition. In November 2020, the Veteran was afforded a VA examination for back conditions, during which he denied flare-ups, but he reported low back pain with prolonged standing, walking, and bending and that he was unable to lift heavy objects. He did a lot of stretching and back exercises to help relieve discomfort. Initial ROM testing revealed forward flexion of 85 degrees; extension of 25 degrees; right lateral flexion of 25 degrees; left lateral flexion of 25 degrees; and right and left lateral rotation of 25 degrees. Pain was noted on examination and it caused functional loss in all directions tested. There was evidence of pain on weightbearing, and localized tenderness on palpation in the lower back. The Veteran was able to perform repetitive use testing with at least three repetitions and there was no change in RO after repetitive testing. The examiner noted that pain significantly limited functional ability with repeated use over time. The estimated ROM with repeated use over time was forward flexion of 80 degrees; extension of 20 degrees; right lateral flexion of 20 degrees; left lateral flexion of 20 degrees; and right and left lateral rotation of 20 degrees. The examiner also noted that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare ups as the Veteran denied flare ups. There was guarding or muscle spasms of the thoracolumbar spine not resulting in abnormal gait or abnormal spinal contour. Muscle strength was normal, and there was no muscle atrophy. Deep tendon reflexes and sensory examinations were also normal. Straight-leg raising test was negative, bilaterally. There was no ankylosis. There were no signs or symptoms due to radiculopathy. There were no other neurological abnormalities. The examiner indicated that the Veteran did not have IVDS. After careful consideration of the medical and lay evidence of record, the Board concludes that, prior to January 29, 2016, a disability rating in excess of 10 percent for the Veteran's low back disability is not warranted. The Board finds that, prior to January 29, 2016, the Veteran's low back disability manifested as painful motion due to degenerative disc disease. See 38 C.F.R. § 4.59, 4.71a, Diagnostic Code 5003; Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991); Burton v. Shinseki, 25 Vet. App. 1 (2011). His low back disability, however, did not manifest as forward flexion of the thoracolumbar spine 60 degrees or less; 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. Consequently, prior to January 29, 2016, the Veteran's disability picture more nearly approximated a disability rating of 10 percent, but no higher. The Board finds that, from January 29, 2016, the preponderance of the evidence is against finding that the Veteran's low back disability manifested as forward flexion of the thoracolumbar spine 30 degrees or less, ankylosis of the entire thoracolumbar spine, or incapacitating episodes, and accordingly, a disability rating in excess of 20 percent is not warranted. During this period, physical examination revealed forward flexion of 90 degrees in January 2016 and 80 to 85 degrees in November 2020. The January 2016 examination revealed guarding muscle spasm severe enough to result in an abnormal spinal contour of mild scoliosis, which is contemplated by a disability rating of 20 percent. As for incapacitating episodes due to IVDS, the Board notes that the medical evidence establishes that the Veteran does not suffer from IVDS. There is no evidence of record that a physician has prescribed any period of bed rest to treat the Veteran's IVDS or any other aspect of his back disability. The Veteran has not contended otherwise. Consequently, the Board finds that the Veteran's low back disability has not been manifested as incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months to warrant a higher disability rating under the criteria for IVDS. As a final matter, the Board notes that the change to Diagnostic Code 5243 effective February 7, 2021 states that the criteria should be applied for intervertebral disc syndrome only when there is disc herniation with compression and/or irritation of the adjacent nerve root. As the evidence does not reflect that the Veteran suffers intervertebral disc syndrome/lumbosacral disc herniation, the revised criteria is not applicable. In addition to the schedular criteria, the Board has considered functional loss due to flare-ups of pain, weakness, fatiguability, incoordination, pain on movement, and lack of endurance for each period under consideration. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The probative evidence, both medial and lay, establishes that the Veteran has reported painful motion with lifting heavy objects as well as increased pain with prolonged standing, walking, and bending in November 2020. As noted above, range of motion testing has produced varied results, the worst being forward flexion of 80 degrees. Consequently, the Board finds that the preponderance of the evidence is against finding that the Veteran has been so limited by the factors noted in DeLuca and 38 C.F.R. §§ 4.40, 4.45, and 4.59 as to constitute forward flexion of the thoracolumbar spine 30 degrees or less or ankylosis of the entire thoracolumbar spine. VA examiners consistently have indicated that ankylosis is not present. Even considering DeLuca and 38 C.F.R. §§ 4.40, 4.45, and 4.59, ankylosis was not nearly approximated. The Veteran has not contended otherwise. Consequently, the Board finds that, throughout the period on appeal, the Veteran's back disability did not manifest as forward flexion of the thoracolumbar spine 30 degrees or less, ankylosis of the entire thoracolumbar spine, or incapacitating episodes such that a rating in excess of 20 percent is warranted. (Continued on the next page) The Board has also considered whether separate neurological evaluations are warranted in this case. However, the record does not show any neurologic or radicular abnormalities in connection to the low back disability. As the preponderance of the evidence is against the claim for higher ratings, there is no doubt to be resolved, and ratings greater than those currently assigned for the Veteran's service-connected disabilities are not warranted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. J. In, 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.