Citation Nr: 21030932 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 15-25 106 DATE: May 20, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for lumbar spine disability for the period on appeal prior to February 4, 2014; and in excess of 40 percent, thereafter, is denied. FINDINGS OF FACT 1. For the period on appeal prior to February 4, 2014, the competent evidence of record shows that the Veteran's forward flexion of the thoracolumbar spine was, at worst, limited to 60 degrees or less; forward flexion of the thoracolumbar spine limited to 30 degrees or less, ankylosis of the thoracolumbar spine or of the entire spine, and intervertebral disc syndrome (IVDS) has not been shown. 2. For the period on appeal beginning February 4, 2014, the competent evidence of record shows that the Veteran's forward flexion of the thoracolumbar spine was, at worst, limited to 10 degrees or less; ankylosis of the thoracolumbar spine or of the entire spine and IVDS has not been shown. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for a lumbar spine disability prior to February 4, 2014; and in excess of 40 percent, thereafter, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 5242 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the United States Army from October 2002 to March 2003 and from September 2005 to August 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, continuing a 20 percent disability rating for the Veteran's service-connected lumbar spine disability. In April 2015 the Veteran filed a notice of disagreement (NOD) and in May 2015 the RO issued a statement of the case (SOC). In July 2015 the Veteran submitted a substantive appeal and requested a videoconference hearing. In August 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the record. In an April 2019 decision, the Board remanded this issue for additional development, which has been substantially completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). While this matter was pending before the RO, in a January 2021 rating decision, the RO assigned a higher 40 percent disability rating for the lumbar spine disability, effective February 4, 2014. 1. Entitlement to a disability rating in excess of 20 percent for lumbar spine disability for the period on appeal prior to February 4, 2014; and in excess of 40 percent, thereafter, is denied. The Veteran is seeking a higher disability rating for his lumbar spine disability. Specifically, he contends that his disability warrants a 40 percent disability rating because he experiences severe pain in his back and swelling after standing and walking for extensive periods. See July 2015 VA Form 9; May 2015 NOD; February 2014 Claim. A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, 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 Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. See 38 C.F.R. §§ 4. 40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 205-06 (1995). As such, in evaluating musculoskeletal disabilities, VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. See DeLuca, 8 Vet. App. at 206. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, this regulation is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Court of Appeals for Veterans Claims (Court) has held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." See Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain may result in functional loss, but only if it limits the ability to "perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance." Id. (quoting 38 C.F.R. § 4. 40). The Board has reviewed the entire record but will only discuss the evidence necessary to explain its decision. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence); see Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 49. Here, the Veteran has been assigned a 40 percent disability rating for his lumbar spine disability for the entire period on appeal under Diagnostic Code 5237. Disabilities of the spine are rated under the General Rating Formula for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Rating Formula); whichever method results in the higher evaluation when all disabilities are combined will be used. Here, ratings are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a. Under the General Rating Formula, a 20 percent disability 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 to 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. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242, Note 5. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations, VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. Under the IVDS Rating Formula, a 20 percent rating is warranted for 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 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 requires incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. Turning to the evidence of record, March 2013 VA treatment records reveal that Veteran complaining of low back pain. He denied radiation into buttocks, hips, or lower legs. There was no point tenderness over thoracic or lumbar spine. On examination, the Veteran had decreased spinal range of motion (ROM) with forward flexion limited to about 60 degrees, extension limited to about 30 degrees, and limited side flexion bilaterally. He had normal gait and muscle strength. In June 2014, the Veteran was afforded a VA examination. The Veteran reported that over the last year his pain had been worse. He reported flareups where he was unable to get out of bed at least once a month. On examination, initial ROM testing and testing after repetitive use revealed forward flexion to 90 degrees or greater. There was no additional functional loss or limitation of ROM following repetitive use testing. The examiner did not determine range of motion during flareups. There was no guarding or muscle atrophy and muscle strength was normal. Sensory examination was normal and there was no ankylosis of the spine. In an August 2014 VA treatment record the Veteran reported that he had limited low back ROM. In July 2016, the Veteran was afforded a VA examination. The Veteran reported low back pain without relief, with flareups. On examination, initial ROM testing revealed forward flexion to 15 degrees. Repetitive use testing was too painful to complete and the examiner did not estimate ROM during flare-ups. There was no guarding or muscle atrophy and muscle strength was normal. Sensory examination was normal and there was no ankylosis of the spine. In a March 2017 DBQ, initial ROM testing revealed flexion limited to 25 to 30 degrees, extension limited to 30 degrees, bilateral lateral flexion to 20 degrees each, and bilateral rotation to 30 degrees each. Repetitive motion testing was not performed. Flexion during flare-ups was estimated to be between 25 and 30 degrees. No ankylosis was noted. In December 2020, the Veteran was afforded a VA examination. The Veteran reported worsening pain and flareups. On examination, initial ROM testing revealed forward flexion to 30 degrees, extension to 25 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 10 degrees, and left lateral flexion to 20 degrees. Repetitive use and flare-up testing revealed forward flexion to 10 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 15 degrees, right lateral rotation to 10 degrees, and left lateral flexion to 15 degrees. Pain was noted to cause functional loss. There was guarding that did not result in abnormal gait. Muscle atrophy and muscle strength was normal. Sensory examination was normal and there was no ankylosis of the spine. No IVDS was noted but there was objective evidence of pain on passive ROM. Considering the foregoing and based on the applicable legal criteria, the Board finds that disability ratings in excess of 20 percent prior to February 4, 2014 and in excess of 40 percent, thereafter, are not warranted. Regarding the period on appeal prior to February 4, 2014, the Board concludes that the record does not show that it was factually ascertainable that the Veteran's disability increased in severity during the one-year period prior to receipt of his increased rating claim. Specifically, nothing in the record reflects that flexion was functionally limited to less than 30 degrees. In reaching this determination, the Board has considered the Veteran's competent and credible contentions regarding increased pain and swelling after prolonged standing or walking and with the cold and of limitation in motion in his August 2014 statement and February 2014 claim. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, the Veteran's current disability rating contemplates pain on motion and flexion greater than 30 degrees but not greater than 60 degrees, and, as noted above, March 2013 VA treatment records shows forward flexion limited to, at worst, 60 degrees. The Board acknowledges that the March 2013 VA treatment records are not fully compliant with the most recent Court decisions relating to orthopedic examinations. Cf. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). However, the Veteran has not described a specific range of motion loss upon flareups or with repeated use that reaches 30 degrees or less, and there is no other evidence that does so. Accordingly, the Board finds that remand for a retrospective opinion would merely impose an additional burden on VA with no benefit flowing to the Veteran, as VA would be asking an examiner to speculate as to the pre-February 4, 2014, ranges of motion. Accordingly, the evidence does not demonstrate that it is factually ascertainable that an increase in disability occurred within the one-year period preceding receipt of the Veteran's increased rating claim on February 4, 2014 and a higher rating is not warranted. Regarding the period on appeal beginning February 4, 2014, the record shows that the Veteran's forward flexion was, at worse, limited to 10 degrees. As indicated above, the Veteran's VA treatment records, private treatment records, lay assertions, and VA examinations are negative for any evidence of ankylosis or immobility of the spine. Therefore, based on the objective medical evidence of record, the Veteran's symptomatology more nearly approximates a disability rating of 40 percent and does not more nearly equate to a 50 percent disability, which contemplates ankylosis of the thoracolumbar spine. In reaching this decision, the Board has considered the Veteran's competent lay assertions, to include reports of pain and difficulty sitting and standing. The Veteran is certainly competent to describe his observations and the Board finds that his statements are credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (noting that personal knowledge is "that which comes to the witness through the use of his senses-that which is heard, felt, seen, smelled, or tasted"). However, the Board finds that the objective medical findings by skilled professionals, which incorporate the Veteran's competent assertions provide the most persuasive evidence regarding the limitations posed by the Veteran's lumbar spine disability. Furthermore, the Veteran has herein been assigned the highest disability rating for limitation of motion for the thoracolumbar spine, and evidence of ankylosis has not been shown. The Board has also considered whether for the entire period on appeal the Veteran is entitled to a higher rating for his back disability based on the IVDS Rating Formula. As noted above, the Veteran does not have a diagnosis of IVDS. As such, there is no indication in the record that the Veteran has experienced incapacitating episodes of IVDS having a total duration of at least 4 weeks, so as to warrant higher disability ratings of 40 or 60 percent for IVDS. Based on the foregoing, the Board finds that a disability rating in excess of 20 percent prior to February 4, 2014, and in excess of 40 percent, thereafter, is not warranted, for the Veteran's lumbar spine disability. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). According the claim for a higher disability rating is denied. Because a preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kaufer, 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.