Citation Nr: 21029183 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 17-17 463 DATE: May 12, 2021 ORDER An initial rating of 40 percent for degenerative disc disease, lumbosacral spine with lumbosacral strain (hereinafter back disability) is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his back disability is manifest by forward flexion of 30 degrees during a flare-up. CONCLUSION OF LAW The criteria for an initial rating of 40 percent for back disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Navy from March 1999 to February 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Board issued a decision denying an increased rating for a back disability. In a September 2020 Order, the United States Court of Appeals for Veterans Claims (Court) endorsed a joint motion for partial remand (JMPR), vacated the Board's October 2019 decision, and remanded the case for further action consistent with the terms of the joint motion. As noted above, this matter was returned to the Board pursuant to a September 2020 JMPR. "A joint motion for remand, when drafted properly, identifies ... clear instructions to the Board as to what it is required to address, and what actions it is required to take, on remand. This increases both administrative and judicial efficiency." Carter v. Shinseki, 26 Vet. App. 534, 541 (2014), vacated on other grounds sub nom. Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015). In February 2021, the Board remanded this matter for further development. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Whereas here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for different periods of time, based on the facts found is required. Fenderson v. West, 12 Vet. App. 119 (1999). Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability have exhibited signs or symptoms that would warrant different ratings under the rating criteria. The Veteran contends his back disability warrants a higher rating. For the following reasons, the Board finds that an initial rating of 40 percent is warranted. The regulations pertaining to musculoskeletal disabilities were revised effective February 7, 2021. Claims, such as this, pending prior to the effective date will be considered under both old and new rating criteria from that date, and whichever criteria is more favorable to the Veteran will be applied from this date. The rating criteria under the General Rating Formula for Diseases and Injuries of the Spine were not changed when the regulations pertaining to musculoskeletal disabilities were revised. The Veteran's back disability is currently assigned a 10 percent rating prior to February 7, 2021, and 40 percent thereafter under diagnostic code 5242. 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 height. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. 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. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar 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. 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; 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." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always considered favorable ankylosis. 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; 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 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Throughout the appeal period, the Veteran underwent three VA examinations. His first two examinations, in December 2015 and June 2017, were not compliant with the Court's holdings in Sharp v. Shulkin, 29 Vet. App. 26 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016). As such, these examinations are inadequate, and the Board will not rely on them for rating purposes. In March 2021, the Veteran underwent another VA examination. At this examination the Veteran exhibited forward flexion to 70 degrees, extension to 15 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. His combined range of motion was 185 degrees. The Veteran reported flare-ups, and the examiner estimated the Veteran's range of motion during flare-ups to be forward flexion to 30 degrees, extension to 0 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10, right lateral rotation to 10 degrees, and left lateral rotation to 10 degrees. The examiner found no ankylosis and did not find the Veteran to have intervertebral disc syndrome (IVDS). The Veteran reported flare-ups twice a month that last three to four days. Considering the above evidence, the Board finds that after resolving reasonable doubt in the Veteran's favor an initial rating of 40 percent is warranted for the Veteran's back disability. Though the Board is not considering the December 2015 and June 2017 examinations for rating purposes, the Board notes that at these examinations the Veteran reported flare-ups. At his most recent examination, estimates of his range of motion during flare-ups were provided that support a 40 percent rating for his back disability. As the Veteran has consistently reported flare-ups throughout the appeal period that have gradually increased in severity, the Board finds that there is reasonable doubt he exhibited reduced range of motion of forward flexion to 30 degrees during a flare-up. When there is reasonable doubt, it is resolved in the Veteran's favor. 38 C.F.R. § 4.3. As such, an initial rating of 40 percent for the Veteran's back disability is granted. A rating higher than 40 percent cannot be awarded. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. At no point has the Veteran exhibited unfavorable ankylosis. As such, the Board cannot assign a rating higher than 40 percent. The Board has considered if a higher rating is available under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. However, the Veteran does not have a diagnosis of IVDS. As such, a higher rating under this rating criteria is not available. After resolving reasonable doubt in the Veteran's favor, the Board finds that an initial rating of 40 percent is warranted for the Veteran's back disability and the claim is granted. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Chandeck, 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.