Citation Nr: 21030193 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 18-55 409 DATE: May 18, 2021 ORDER Entitlement to a rating in excess of 10 percent for the period prior to February 20, 2021, and a rating in excess of 20 percent from that date, for lower back strain with degenerative arthritis is denied. FINDINGS OF FACT 1. For the period prior to February 20, 2021, the Veteran's lower back strain with degenerative arthritis has not been manifested by forward flexion 60 degrees or less, a combined range of motion less than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or ankylosis. 2. For the period from February 20, 2021, onward, the Veteran's lower back strain with degenerative arthritis has not been manifested by forward flexion 30 degrees or less or ankylosis. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 10 percent for the period prior to February 20, 2021, and a rating in excess of 20 percent from that date, onward, for lower back strain with degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.21, 4.71a, Diagnostic Code (DC) 5242 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April to June 1992, October 2001 to October 2002, June to August 2006, and in March 2007. He served honorably in the U.S. Air Force, including service in Qatar during the Gulf War. The Board thanks the Veteran for his service to our country. The issue of an increased rating for the lower back disability was previously before the Board in July 2019, when the Board denied the claim. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In a July 2020, granting a July 2020 Joint Motion for Remand (Joint Motion), the Court vacated and remanded the July 2019 Board decision consistent with the terms of the Joint Motion. The Board remanded this case in December 2020 for additional development. The case has now returned to the Board for further appellate review. Entitlement to a rating in excess of 10 percent for the period prior to February 20, 2021, and a rating in excess of 20 percent from that date, onward, for lower back strain with degenerative arthritis is denied. The Veteran contends, generally, that a higher rating is warranted for his lower back disability. The Board finds that a rating in excess of 10 percent for the period prior to February 20, 2021 and a rating in excess of 20 percent from that date, onward, is not warranted. Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The current claim for increase was filed in August 2018, and the Board will look at the evidence within the year prior to that filing to determine whether an increase occurred within that time frame. The Veteran's service-connected disability is rated under 38 C.F.R. § 4.71a, DC 5242 5237. Hyphenated diagnostic codes are used when a rating for a particular disability under one diagnostic code is based upon rating of the residuals of that disability under another diagnostic code. 38 C.F.R. § 4.27. The first four numbers reflect the diagnosed disability. The second four numbers, after the hyphen, identify the criteria used to evaluate that disability. During the pendency of the instant appeal, VA promulgated new regulations governing ratings for musculoskeletal system and muscle disabilities, effective February 7, 2021. See 85 Fed. Reg. 76,453 (Nov. 30, 2020). When a law or regulation changes during the pendency of a veteran's appeal, the version most favorable to the veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). In this case, DC 5237, under which the Veteran's back disability is rated, was unchanged by the amendments. As to DC 5242, characterized as degenerative arthritis of the spine under the old regulation and changed to degenerative arthritis, degenerative disc disease other than IVDS under the new regulation, this is generally rated under the same unchanged criteria as for DC 5237. DC 5237 applies the General Rating Formula for Diseases and Injuries of the Spine (Rating Formula). Under the Rating 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 greater than 120 degrees but 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. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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. 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 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). The Board has reviewed all of the evidence in the Veteran's record. Although the Board is required to provide reasons and bases supporting its decision, there is no need to discuss each item of evidence in the record. The Board will summarize the pertinent evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence of record shows, or does not show, with respect to the claim. See Gonzalez v. West, 218 F.3d 1278, 1380-81 (Fed. Cir. 2000). In this case, in a July 2017 note, the Veteran reported intermittent back pain with flare-ups with certain activities. In a September 2018 VA examination report, the Veteran reported constant pain of 2 on a scale of 10 with intermittent flare-ups of 10 on a scale of 10. He reported flare-ups with increased lifting, sitting, standing, or walking. He reported that he could not bend or lean as far as before. On examination, the examiner noted left lateral flexion and rotation of 20; otherwise, initial range of motion testing was normal. The examiner noted no additional functional loss with observed repetitive use and stated, without providing an adequate reason, that it could not be determined without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited the Veteran's functional ability with repeated use over time or during flare-ups. The examiner noted that there was no muscle spasm and that guarding did not result in abnormal gait or abnormal spinal contour. The examiner concluded that there was no ankylosis of the spine. The examiner noted that the Veteran used no assistive devices and concluded that the disability was not so severe that he would be equally well served by amputation with prosthesis. The examiner noted no other physical findings. The examiner characterized the functional impact of the disability as impacting his ability to stand, sit, or walk for more than 20 to 30 minutes at a time and decreasing his ability to lift more than 20 to 25 pounds. The examiner noted that his back was slightly, but not significantly, worse than its condition when examined in February 2017, which is prior to the period on appeal. In a November 2018 statement, the Veteran stated that since he injured his back, he could stand up wrong and it would go back out again. He stated that he was always careful how he stood, sat, or even sneezed. He stated that he was a registered nurse and was unable to lift his patients due to his fear of injuring his back again. In a January 2019 statement, he stated that his back pain had worsened over the years to the point where he could barely walk due to pain. In a March 2019 VA examination report, the Veteran reported that his disability had worsened in the past 18 months. He reported that he felt more spasms and could lose function or cause flare-ups with the slightest movements, including coughing or sneezing. He reported that his muscles were always tight and that he had to be careful twisting or bending, as the slightest movement could throw out his back. He reported flares randomly with coughing, sneezing, or standing long periods of time. The examiner noted that they occurred randomly, were severe, and required him to take it easy for one week. The Veteran reported that flare-ups led to functional loss, taking as long as a week to recover. On examination, the examiner noted normal initial range of motion and noted that there was no additional functional loss with observed repetitive use. The examiner stated that it could not be determined without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited the Veteran's functional ability with repeated use over time or during flare-ups as there is no conceptual or empirical basis for making such a determination without directly observing function under the conditions and as there was a lack of supporting objective documentation in the file. The examiner noted that muscle spasm and guarding did not result in abnormal gait or abnormal spinal contour. The examiner noted that his disability interfered with sitting and standing for long periods of time. The examiner concluded that there was no ankylosis of the spine. The examiner noted that the Veteran used no assistive devices and concluded that the disability was not so severe that he would be equally well served by amputation with prosthesis. The examiner noted no other physical findings. The examiner characterized the functional impact of the disability as his inability to assist with patients, lift heavy objects, or sit or stand for more than 30 minutes at a time. In a January 2020 note, the Veteran reported some occasional chronic stable back pain. In a February 2021 VA examination report, the Veteran reported that his disability had progressed or worsened with sharp pain and stiffness. He reported moderate, daily flare-ups of sharp pain with stiffness lasting less than 15 minutes, precipitated by prolonged standing or ambulation and alleviated with rest or the use of pain medication. He reported that his pain limited prolonged standing or ambulation. On examination, initial range of motion testing showed forward flexion limited to 78, extension limited to 24, right lateral flexion limited to 24, left lateral flexion and right lateral rotation limited to 23, and left lateral rotation limited to 23. Passive range of motion was noted to be the same. The examiner noted no additional functional loss with observed repetitive use. The examiner concluded that pain, fatigability, weakness, lack of endurance, or incoordination did not significantly limit functional ability with repeated use over time or during a flare up. The examiner noted that muscle spasms resulted in abnormal gait or spinal contour and noted no additional factors contributing to the disability. The examiner concluded that there was no ankylosis of the spine. The examiner noted that the Veteran used no assistive devices and concluded that the disability was not so severe that he would be equally well served by amputation with prosthesis. The examiner noted no other physical findings. The examiner characterized the functional impact of the disability as pain limiting prolonged standing or ambulation, thereby compromising his job functions. The examiner remarked that there was a worsening of the Veteran's symptoms. For the period prior to February 20, 2021, the Board finds that a rating in excess of 10 percent is not warranted. Forward flexion was normal and the combined range of motion of the thoracolumbar spine exceeded 120 degrees; there is no evidence of additional limitation of motion on observed repetitive use, repeated use over time, or during flare-ups. There is no evidence of abnormal gait or spinal contour due to muscle spasm or guarding. There is no evidence of ankylosis; rather, the evidence demonstrates that the Veteran had movement on both forward flexion and extension. For the period from February 20, 2021, onward, the Board finds that a rating in excess of 20 percent is not warranted. Forward flexion was not limited to 30 degrees or less and there is no evidence of additional limitation of motion on observed repetitive use, repeated use over time, or during flare-ups. There is no evidence of ankylosis; rather, the evidence demonstrates that the Veteran had movement on both forward flexion and extension. The Board acknowledges the Veteran's reports of pain, stiffness, and muscle tightness limiting prolonged standing or ambulation during flare-ups. However, as the most probative evidence shows that these symptoms do not manifest in additional limitation of motion, a higher rating is not warranted. See Thompson, 815 F.3d at 785. Hence, after reviewing all the evidence of record, the Board finds that the preponderance of the evidence is against finding that increased ratings are warranted. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The claim is, therefore, denied. Gilbert, 1 Vet. App. at 55; 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Vashaw, 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.