Citation Nr: 21029948 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 13-02 477 DATE: May 17, 2021 ORDER Prior to November 30, 2012, a rating of 40 percent for compression fractures T-11 and L2, L1 with degenerative arthritis (hereafter lumbar spine disability) is granted. Entitlement to an evaluation in excess of 40 percent for a lumbar spine disability is denied. THE VETERAN'S CONTENTIONS The Veteran contends a rating in excess of 20 percent for his lumbar spine disability prior to November 30, 2012, and a rating in excess of 40 percent thereafter is warranted. See March 2021 Appellant's Post-Remand Brief. He contends that his disability picture is worse than currently rated as he has ongoing worsening symptoms of functional loss due to weakness, fatigability, incoordination, or pain on movement of incapacitating attacks of pain; and limitation of motion due to pain on use, including flareups. He contends that he has marked interference with his daily activities. Id.; September 2020 Appellate Brief; October 2017 Appellate Brief. In September 2015, the Veteran testified that his back limits him on what he can do, and he stated, "there is not a day goes by that my back does not just literally kill me." See September 2015 Board hearing transcript, P. 3. He stated there are times when he needs help getting up, he cannot stay standing up straight, and he has a hunch most of the time. Id. The Veteran also testified that he has flareups, and that his flareups get to the point where he has to lay down on the couch two to three times per week, and that he takes Percocet three or four times per day. Id., P. 13. The Veteran also seeks extraschedular consideration for his back condition. See September 2015 Board hearing transcript, P. 4. FINDINGS OF FACT Accounting for the frequency and severity of flare-ups, the Veteran's lumbar spine disability is more nearly characterized as having forward flexion of 30 degrees or less throughout the appeal period, without ankylosis or the functional equivalent thereof or incapacitating episodes of intervertebral disc syndrome. CONCLUSIONS OF LAW 1. Prior to November 30, 2012, the criteria for an increased rating of 40 percent, but no higher, for the Veteran's lumbar spine disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400(o), 4.1, 4.2, 4.3, 4.7, 4.10, 4.27, 4.40, 4.59, 4.71a, DC 5237; Sharp v. Shulkin, 29 Vet. App. 26 (2017). 2. The criteria for a rating in excess of 40 percent, for the Veteran's lumbar spine disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400(o), 4.1, 4.2, 4.3, 4.7, 4.10, 4.27, 4.40, 4.59, 4.71a, DC 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1973 to October 1973 and from October 1974 to March 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2013, the Board remanded the appeal to schedule the Veteran for a hearing regarding his increased rating claim. The Veteran testified at a hearing before a Veterans Law Judge (VLJ) in September 2015. In a September 2016 decision, the Board denied an evaluation in excess of 20 percent for a lumbar spine disability prior to November 30, 2012, in excess of 40 percent thereafter. The claims pertaining to lower extremity radiculopathy were remanded for further development. The Veteran appealed the September 2016 Board decision to the United States Court of Appeals for Veterans Claims (Court). The radiculopathy claims were not before the Court. In September 2017, the Court, pursuant to a Joint Motion for Partial Remand (JMPR) filed by the parties, vacated the September 2016 Board decision, and remanded the appeal to the Board for compliance with the terms of the JMPR. In March 2018, the Veteran was notified that the VLJ who conducted the September 2015 hearing was no longer at the Board and was given an opportunity to request a new Board hearing in conjunction with his claim. The Veteran did not respond, and the Board presumed he did not want another hearing. In April 2018, as they were pending before the agency of original jurisdiction (AOJ), the Veteran opted the claims for increased rating for radiculopathy of the lower extremities and individual unemployability into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the higher-level review (HLR) lane. In August 2018, the AOJ notified the Veteran that these claims were withdrawn under the legacy appeal process. In March 2019, the AOJ issued a RAMP HLR decision, which granted increased 20 percent ratings for right and left lower extremity radiculopathy effective September 15, 2018, and denied individual unemployability based on all his service-connected disabilities. Consequently, these issues are not currently before the Board. The Board remanded the claim for an increased rating for a lumbar spine disability for further development in May 2018 and October 2020. Lumbar spine disability Presently, the Veteran's lumbar spine disability is rated 20 percent disabling prior to November 30, 2012, and 40 percent disabling since November 30, 2012 under 38 C.F.R. § 4.71a, DC 5003-5237. A disability assigned this diagnostic code is evaluated under the General Rating Formula for Diseases and Injuries of the Spine (general formula). Under the general rating formula for diseases and injuries of the spine, a 20 percent disability rating is warranted when forward flexion of the thoracolumbar spine is 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, muscle spasm or guarding is 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 when forward flexion of the thoracolumbar spine is 30 degrees or less; or, when there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating requires unfavorable ankylosis of the entire spine. The notes listed below apply to the General Rating Formula for Diseases and Injuries of the Spine: Note (1) Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 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 spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which 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. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS), a 60 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. For purposes of evaluation under Diagnostic Code 5243 (Intervertebral Disc Syndrome), 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, The Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. At the outset, the Board finds that the criteria in effect prior to February 7, 2021, is more favorable to the Veteran. Notably, consideration was given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. Under the new Diagnostic Code 5243, IVDS is assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root. This has not been shown in the objective medical evidence throughout the appeal period. Diagnostic Code 5242 degenerative arthritis was revised to "degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome." The criteria for the rating percentages under the General Rating Formula for Diseases and Injuries of the Spine did not change. Thus, the Board will proceed with adjudicating the Veteran's claim under the old rating criteria. After a review of the evidence of record, the Board finds that a 40 percent rating, and no higher, is warranted for the Veteran's lumbar spine disability throughout the appeal period. A VA examination was conducted in November 2010. The VA examiner stated that the Veteran's functional loss could not be clearly delineated during a flare-up, and that he was unable to estimate the additional loss of range of motion, amount of pain, and decrease in functional capacity during a flare-up without resorting to speculation. The Court determined that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the Veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why she could not do so." Sharp, supra. The Board remanded this claim in May 2018 and October 2020 to obtain a retrospective medical opinion as to functional loss or loss of motion the Veteran experienced prior to November 30, 2012. This medical opinion was obtained in October 2020. However, the examiner stated it was impossible beyond speculation to opine on the extent of functional impairment of the Veteran's lumbar spine due to flare-ups from August 2010 to November 2012. The examiner explained that the range of motion model and symptoms of motion rely on the Veteran's subjective symptoms and his effort in active range of motion in the back. Thus, it was impossible beyond speculation to opine on the extent of the Veteran's flare-ups, going by a medical evaluation that essentially measures range of motion and contained no explanation on the amount or type of pain, or reason, description, details, definition of incoordination, weakened movement, and excess fatigability. Nevertheless, the Board shall afford the Veteran the benefit of the doubt and finds that his flare-ups would result in forward flexion of 30 degrees or less. Accordingly, the Board awards a 40 percent rating for the Veteran's lumbar spine disability prior to November 30, 2012. However, the Board finds that a rating in excess of 40 percent is not warranted prior to November 30, 2012, or since November 30, 2012. Recently the Court issued a decision in Chavis v. McDonough, No. 18-2928 (April 16, 2021), and found that when evaluating a disability under VA's General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosisi.e., functional loss consistent with that contemplated by ankylosis. See also 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. §§ 4.40, 4.45 are for application when evaluating joint disabilities and their manifestations, which may include ankylosis. These sections direct adjudicators to determine whether the joint demonstrates less movement than normal and ankylosis is specifically identified among the possible causes of less movement. Moreover, § 4.40 provides that "functional loss may be due to...pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion." Accordingly, the Court in Chavis found that the application of 38 C.F.R. §§ 4.40 and 4.45 permits consideration under the General Rating Formula of an evaluation based on ankylosis if a claimant's functional loss is consistent with that contemplated by ankylosis or if it is the functional equivalent of ankylosis. As noted above, under the General Rating Formula for Diseases and Injuries of the Spine, the criteria for a rating in excess of 40 percent require unfavorable ankylosis of the entire thoracolumbar spine. There is no evidence showing ankylosis of the Veteran's spine ankylosis (a condition in which the spine or a spinal segment is fixed in flexion or extension) or the functional equivalent thereof throughout the appeal period. See November 2010, November 2012, January 2015, December 2019 VA examinations; VA treatment records; private treatment records from Dr. J.R. and S.M. The November 2010, November 2012, and January 2015 VA examinations found no objective evidence of ankylosis. In November 2010, the Veteran denied any flare-up of his pain that was constant. He did indicate pain was aggravated by bending, walking, or standing; however, he was still able to walk. At the time of the examination the Veteran walked unaided. In November 2012, flare-ups of pain were associated with body positioning and movement, but motion was still possible. The Veteran was able to perform repetitive testing with no additional limitation in range of motion. Functional impairment was described in pertinent part as less movement than normal. In January 2015, the Veteran reported flare-ups with leaning over, doing dishes, and pain with walking 30 minutes. He reported flare-ups about three times a week and duration were approximately two to three hours. The examiner indicated the examination neither supported nor contradicted the Veteran's statements describing functional loss during flare-ups. A December 2019 VA examination determined there was no ankylosis and estimated that the Veteran's functional loss during flareup was forward flexion of 10 degrees, extension of 5 degrees, right lateral flexion of 5 degrees, left lateral flexion of 5 degrees, right lateral rotation of 5 degrees, and left lateral rotation of 5 degrees. While flare-ups limited the Veteran's ability to perform strenuous activities, movement of the spine was still possible and in addition, the Veteran was able to perform sedentary activities. A October 2020 examination found no ankylosis and estimated that the Veteran's functional loss during flareup was forward flexion of 40 degrees, extension of 5 degrees, right lateral flexion of 15 degrees, left lateral flexion of 15 degrees, right lateral rotation of 20 degrees, and left lateral rotation of 20 degrees. Moreover, the examiner was asked to provide an opinion regarding whether the Veteran has had the functional equivalent of ankylosis of the spine, to include during flare-ups. The examiner determined that the Veteran did not have the functional equivalent of ankylosis. Specifically, the clinician stated that ankylosis is essentially fusion of the joint resulting in very minimal movement of that joint; and there was never a time when the Veteran essentially could not flex his back somewhat and no diagnostic tests consistent with ankylosis. The examiner further noted that in order for the Veteran to ride to the clinic and sit and rise from a chair, it requires back movement. Accordingly, a rating in excess of 40 percent rating is not warranted for ankylosis or the functional equivalent of ankylosis throughout the appeal period. The Court in Chavis has determined that ankylosis is an objective finding and not a diagnosis and the evidence of record does not support such a finding at any point of the appeal period. The Board has also considered whether the Veteran's functional loss is consistent with that contemplated by ankylosis, but the evidence does not demonstrate the functional equivalent of ankylosis, i.e. spine or a spinal segment is fixed in flexion or extension or fusion of the joints resulting in very minimal movement of the Veterans' spine. A higher rating is not warranted under the Formula for Rating IVDS Based on Incapacitating Episodes. Although the Veteran has a diagnosis of IVDS, the evidence shows that the Veteran has not suffered from incapacitating episodes as defined and certainly none having a total duration of at least 6 weeks at any point during the appeal period to warrant a 60 percent rating. See November 2010, November 2012, January 2015, December 2019, October 2020 VA examinations; VA treatment records; private treatment records from Dr. J.R. and S.M. The Board has also considered associated objective neurologic abnormalities. See Note (1) following 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. The Veteran is currently in receipt of separate ratings for radiculopathy of the right and left lower extremities associated with his lumbar spine disability. Aside from the Veteran's radiculopathy of the bilateral lower extremities, the evidence does not show, and the Veteran does not contend that he has any other neurological impairment. See November 2010, November 2012, January 2015, December 2019, October 2020 VA examinations. He testified that he had no neurological problems aside from his leg numbness and tingling. Transcript at P. 21. Accordingly, the Board finds that a separate rating is not warranted for any other neurological impairment as associated with the Veteran's thoracolumbar spine disorder. Lastly, the Board has considered the Veteran's request for extraschedular consideration for his lumbar spine disability. The Board generally must consider referral for extraschedular consideration only "[w]here there is evidence in the record that shows exceptional or unusual circumstances or where the veteran has asserted that a schedular rating is inadequate." Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (quoting Yancy v. McDonald, 27 Vet. App. 484, 493 (2016) (internal quotations omitted)). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321 (b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Veteran's symptoms of his lumbar spine disability are limited range of motion with flare-ups, pain, and functional limitations including activities that require ascending and descending from lower surfaces, carrying weight greater than 20 pounds, standing for greater than 10 to 15 minutes, bending forward, turning from side to side, walking, squatting, executing skilled movements, and prolonged positioning. The Board finds that these symptoms are adequately contemplated by the rating criteria. For disabilities of the joints, the rating schedule specifically contemplates factors such as pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Thus, the Veteran's disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are adequate. Consequently, referral for extraschedular consideration is not warranted. K. L. WALLIN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Samuelson, 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.