Citation Nr: 21030362 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 12-04 995A DATE: May 18, 2021 ORDER Entitlement to a rating of 40 percent, but no more, for a back disability from May 16, 2010, to November 14, 2010, is granted. Entitlement to a rating in excess of 10 percent for a back disability from November 15, 2010, to August 4, 2016, is denied. Entitlement to a rating in excess of 20 percent for a back disability from August 5, 2016, to September 26, 2019, is denied. FINDINGS OF FACT 1. From May 16, 2010, to November 14, 2010, the Veteran's back disability was manifested by forward flexion of 30 degrees and overall range of motion of 140 degrees without evidence of ankylosis. 2. From November 15, 2010, to August 4, 2016, the Veteran's back disability was manifested by forward flexion of 80 degrees and overall range of motion of 150 degrees without evidence of ankylosis. 3. From August 5, 2016, to September 26, 2019, the Veteran's back disability was manifested by forward flexion of 45 degrees and overall range of motion of 135 degrees without evidence of ankylosis. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating of 40 percent, but no more, for a back disability from May 16, 2010, to November 14, 2010, are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237 (2020). 2. The criteria for entitlement to a rating in excess of 10 percent for a back disability, from November 15, 2010, to August 4, 2016, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a (2012), Diagnostic Code 5237 (2020). 3. The criteria for entitlement to a rating in excess of 20 percent for a back disability, from August 5, 2016, to September 26, 2019, are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1997 to May 2010. This March 2012 appeal comes before the Board of Veterans' Appeals (Board) from a December 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Houston, Texas. The RO issued an August 2016 rating decision granting a 20 percent rating for the Veteran's low back disability effective August 5, 2016 and an April 2020 rating decision granting a 40 percent rating effective September 27, 2019. In a September 2020 decision, the Board denied a rating in excess of 40 percent from September 27, 2019 but remanded the claim for the earlier ratings for a retrospective medical opinion. The RO issued a February 2021 supplemental statement of case (SSOC) and the case was returned to the Board. The Board notes that the Veteran appealed a denial of entitlement to a total disability rating based on individual unemployability (TDIU) and opted that claim into the modernized review system. Therefore, the issue is not currently before the Board. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted considering the entire recorded history, and each disability must be considered from the viewpoint of the Veteran working or seeking work. 38 C.F.R. § 4.2. If two evaluations are potentially applicable, the higher evaluation 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. In all increased rating claims, staged ratings must be considered for the entire period on appeal. A staged rating is appropriate when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings under the applicable diagnostic code(s). Hart v. Mansfield, 21 Vet. App. 505, 509 (2007), Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to a rating of 40 percent, but no more, for a back disability from May 16, 2010, to November 14, 2010. 2. Entitlement to a rating in excess of 10 percent for a back disability from November 15, 2010 to August 4, 2016. 3. Entitlement to a rating in excess of 20 percent for a back disability from August 5, 2016 to September 26, 2019. The Veteran's service-connected back condition, diagnosed as a post-operative lumbar spinal fusion, is rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237 (see also DC 5003). The rating criteria for DC 5237 follow the General Rating Formula for Diseases and Injuries of the Spine. The portion of the rating schedule that addresses the musculoskeletal system was revised effective February 7, 2021, however, the new rating schedule is not applicable in this case as the issue before the Board is the rating of the back disability prior to September 27, 2019. Under Diagnostic Code 5237, a 10 percent rating is assigned 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 assigned 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 disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar 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. When evaluating musculoskeletal disabilities, the Board must also consider whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45 under any applicable diagnostic code pertaining to limitation of motion. See DeLuca v. Brown, 8 Vet. App. 202 (1995). However, where a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). a) From May 16, 2010 to November 14, 2010 The Veteran contends that he should be granted a higher rating for his back disability due to the severity of his symptoms. The Veteran states that the condition causes him pain with standing or sitting for prolonged periods of time. The Veteran was in a motor vehicle accident in 2002 and has had low back pain since that time. He tried physical therapy and medication and ultimately had a lateral lumbar fusion in January 2008. See March 2010 Medical Treatment Records. His pain was mostly controlled, however in January 2010, the medical evaluation board stated he did not meet retention standards and recommended his case be referred to the physical evaluation board for a determination of fitness for duty. Id. The Veteran was ultimately given a medical discharge from service due to his back condition. See DD 214. During a September 2009 physical therapy appointment, the Veteran showed forward flexion of the thoracolumbar spine of 30 degrees, extension to 20 degrees, left lateral flexion to 25 degrees, right lateral flexion to 20 degrees, left lateral rotation to 25 degrees and right lateral rotation to 20 degrees for a total range of motion of 140 degrees with active motion; painful motion did not further limit the Veteran's range of motion. The Veteran was able to complete the repetitive-use testing without additional limitations to his range of motion. Positive muscle spasm and guarding were noted, and gait was slow. Using the best evidence of record, the Board finds that from May 16, 2010, to November 14, 2010, the Veteran had forward flexion of the thoracolumbar spine of 30 degrees and a combined range of motion of 140 degrees, but there was no evidence of ankylosis or functional loss equivalent to ankylosis. Additional functional loss was not reported on repetitive use testing. Applying the most favorable rating criteria under diagnostic code 5237, a rating of 40 percent, but no more, for Veteran's back condition is warranted prior to November 15, 2010. 38 C.F.R. § 4.71a. b) From November 15, 2010 to August 5, 2016 During a November 2010 VA examination the Veteran reported chronic aching pain in the lower part of his back without loss of flexion caused by his spinal surgery. He stated he did not have true flare-ups or any incapacitating episodes. Further, when he did have pain, it was for a brief period of time. He was unable to sit longer than 30 minutes at a time without getting up to walk around. The Veteran showed forward flexion of the thoracolumbar spine of 80 degrees, extension to 30 degrees, bilateral lateral flexion to 20 degrees, bilateral rotation to 0 degrees for a total range of motion of 150 degrees with both active and passive motion; painful motion did not further limit the Veteran's range of motion. The Veteran had pain but no weakness or fatigue with repetitive-use testing. There was no evidence of tenderness, muscle spasm and/or weakness and his gait was normal. The Veteran had normal muscle strength and a normal sensory examination. In a September 2020 Board remand, the Board found that the November 2010 VA examination was inadequate and failed to meet the requirements of Correia v. McDonald, 28 Vet. App. 158, 168 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 34-35 (2017) and requested a retrospective medical opinion. Chotta v. Peake, 22 Vet. App. 80 (2008). In a February 2021 VA examination the examiner stated that after reviewing the evidence of record, that active motion, passive motion, and pain with weight bearing and the severity, frequency, and duration of flare-ups and the degree of functional loss during flare-ups could not be estimated for the period from May 16, 2010. The examiner explained that the medical records did not sufficiently identify previous ROM during flare-ups or after repetitive motion. Further, general medical knowledge of the claimant's joint condition was insufficient to reasonably estimate ROM for each plane of motion as there is great variability between claimants who have the same conditions. Id. During a February 2015 medical appointment, the Veteran report he was in constant back pain that had gotten worse since the spinal fusion and that pain was radiating into his lower extremities. See April 2015 VA Medical Treatment Records. A review of a January 2015 MRI indicated mild degenerative changes to the thoracic spine, fusion of the lumbar spine and disc bulges. The Veteran was referred to physical therapy for leg numbness and gait difficulties. Id. Using the best evidence of record, the Board finds that, from November 15, 2010, to August 4, 2016, the Veteran had forward flexion of the thoracolumbar spine of 80 degrees and a combined range of motion of 150 degrees, but there was no evidence of ankylosis. The Veteran denied experiencing flare-ups or incapacitating episodes and additional functional loss was not reported on repetitive use testing. The Board has considered the Veteran's statements regarding his symptoms, including his statement that he could not sit for longer than 30 minutes. However, the Board finds that his symptoms regarding functional impairment do not more closely approximate forward flexion of less than 60 degrees, a combined range of motion of the thoracolumbar spine of less than 120 degrees or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Applying the most favorable rating criteria under diagnostic code 5237, a rating in excess of 10 percent for the Veteran's back condition from November 15, 2010, to August 4, 2016, is not warranted. 38 C.F.R. § 4.71a. For the foregoing reasons, the preponderance of the evidence is against the claim for a rating in excess of 10 percent for Veteran's back condition from November 15, 2010. The benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. c) From August 5, 2016 to September 26, 2019 The lumbar spine disability is rated as 20 percent disabling from August 5, 2016, to September 26, 2019. During an August 5, 2016 VA examination the Veteran reported an increase in his symptoms that occurred weekly, including pain and numbness, sometimes resulting in falls. The Veteran was diagnosed with bilateral L5-S1 radiculopathy and was status post lumbar fusion. He showed forward flexion of the thoracolumbar spine of 45 degrees, extension to 10 degrees, bilateral lateral flexion to 10 degrees, and bilateral lateral rotation to 30 degrees for a total range of motion of 135 degrees; painful motion did not further limit the Veteran's range of motion. There was no pain with weight-bearing. The Veteran was able to complete the repetitive-use testing without additional limitations to his range of motion. The Veteran reported symptoms that suggested weekly flare-ups, however the examiner stated the evidence did not support flare-ups, but the explanation was unclear. There was no evidence of muscle spasm or guarding and the Veteran had normal reflexes and sensory examination. There was no evidence of ankylosis or IVDS. The VA examiner opined that the Veteran's spinal condition did not impact his ability to work as he was currently a student and not looking for employment. The Board remand the case in January 2019 for a new VA examination after finding the prior examination was inadequate for failing to comply with Correia in addition to being inconsistent and difficult to understand. The Veteran was afforded a September 2019 VA examination, after which the RO issued an April 2020 rating decision followed by a September 2020 Board decision for the period from September 27, 2019, encompassing the September 2019 VA examination. As the period from September 27, 2019 has already been adjudicated, it is not currently before the Board. In a September 2020 Board remand, the Board found that the August 2016 VA examination was inadequate and failed to meet the requirements of Correia and Sharp and requested a retrospective medical opinion. Chotta, 22 Vet. App. 80 (2008). In a February 2021 VA examination the examiner stated that after reviewing the evidence of record, that active motion, passive motion, and pain with weight bearing and the severity, frequency, and duration of flare-ups and the degree of functional loss during flare-ups could not be estimated for the period from August 5, 2016. The examiner explained that the medical records did not sufficiently identify previous ROM during flare-ups or after repetitive motion. Further, general medical knowledge of the claimant's joint condition was insufficient to reasonably estimate ROM for each plane of motion as there is great variability between claimants who have the same conditions. Id. Using the best evidence of record, the Board finds that during the period of appeal the Veteran had forward flexion of the thoracolumbar spine of 45 degrees and a combined range of motion of 135 degrees. There evidence did not show functional loss due to limitations of motion or pain and there was no evidence of ankylosis. Although the Veteran had symptoms of back pain, the Board finds that his symptoms did not most closely approximate functional loss equivalent to forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Applying the most favorable rating criteria under diagnostic code 5237, a rating in excess of 20 percent for his back condition is not warranted from August 5, 2016, to September 26, 2019. 38 C.F.R. § 4.71a. Regarding neurological impairment, the Veteran has already been granted service connection for radiculopathy of the right and left lower extremities and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. For the foregoing reasons, the preponderance of the evidence is against the claim for a rating in excess of 20 percent for The Veteran's back condition from August 5, 2016, to September 26, 2019. The benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. K. MARENNA Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Aubee, 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.