Citation Nr: 21031169 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 14-25 617 DATE: May 20, 2021 ORDER Entitlement to a rating of 40 percent, but no higher, for thoracolumbar strain (back disability) is granted, prior to October 30, 2016. Entitlement to a rating in excess of 40 percent, since October 30, 2016, is denied. FINDING OF FACT Throughout the period at issue, the Veteran's lumbar spine disability more nearly approximated forward flexion of 30 degrees or less during periods of flareups and with repeated use over time, but there was no evidence of unfavorable ankylosis of the entire thoracolumbar spine. CONCLUSION OF LAW The criteria for a rating of 40 percent, but no higher, have been met throughout the appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty from July 1987 to January 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in April 2015. A transcript of this hearing has been associated with the record. This matter has previously been before the Board on numerous occasions, to include in August 2016 and January 2019. In August 2016, the Board remanded the Veteran's claims to the Agency of Original Jurisdiction (AOJ) for additional development. Subsequently, in January 2017, the AOJ issued a rating decision that increased the Veteran's disability rating for his back condition to 40 percent, effective October 30, 2016. In January 2019, the Board denied an initial disability rating in excess of 20 percent for the Veteran's service-connected back condition prior to October 30, 2016 and denied a disability rating in excess of 40 percent since October 30, 2016. The Veteran appealed the Board's decision to the United States Court of Appeals for Veteran's Claims (CAVC), which then issued an order in February 2020 granting the parties' Joint Motion for Remand (JMR) which vacated the Board's January 2019 decision. Thereafter, an August 2020 Board decision remanded the matter for further development. The claim has since returned to the Board. Entitlement to a rating of 40 percent, but no higher, back disability, prior to October 30, 2016, is granted, and in excess thereafter is denied. Disability evaluations are determined by the application of the VA 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. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability shall be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. The Veteran is currently in receipt of a 20 percent rating, prior to October 30, 2016, and 40 percent, thereafter, for his service-connected back disability, The Veteran's back disability is currently rated under DC 5237. The General Rating Formula for Diseases and Injuries of the Spine assigns evaluations with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of the injury or disease. The General Rating Formula for Diseases and Injuries of the Spine provides that 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. 38C.F.R. §4.71a, DC 5237. A 40 percent evaluation is warranted if there is forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is granted if the Veteran has unfavorable ankylosis of the entire spine. Id. Note (1) of the General Rating Formula for Diseases and Injuries of the Spine instructs to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 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. Id. at Note 5. [Include any other relevant Note(s).] The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months warrants a 10 percent evaluation. A 20 percent evaluation is warranted where there are incapacitating episodes totaling at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is warranted where there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted where there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of38C.F.R. §4.40, taking into account any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown,8 Vet. App. 202 (1995). The provisions of38C.F.R. §4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flareups. 38 C.F.R. § 4.14. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). Notably, the Veteran's service-connected back disability is rated under Diagnostic Codes 5237, the criteria of this diagnostic code did not change. The Veteran was afforded a VA examination in April 2011. He reported radiating back pain with muscles spasms when sleeping on his stomach. His pain increased with driving and increased activity. He denied incapacitating episodes. Upon examination, when asked to forward flex, he would not flex forward. His flexion and extension was opined to be 0 degrees. He demonstrated that he stoops down to one knee to reach the floor without bending his back. His bending and rotation were to 15 degrees bilaterally. There was no change with repetition. No muscle spasms were documented. In April 2013, the Veteran was afforded another VA examination for his back disability. He endorsed flareups, which were described as difficulty toileting and walking one block. Upon examination, he had flexion to 50 degrees with pain at 50 degrees; extension to 20 degrees with pain at 20 degrees, right and left lateral flexion to 30 degrees with pain at 30 degrees; and left and right lateral rotation to 30 degrees with pain beginning at 30 degrees. There was no reduction in range of motion upon repetitive testing. He had tenderness on palpitation. He did not have muscle spasms or guarding. There was no objective evidence of radiculopathy or IVDS. At an October 2016 VA examination, the Veteran continued to endorse flareups. They were described as sharp pain and pulling with sudden pain at times. He also had a burning sensation in the legs with weakness. Range of motion testing was as follows: forward flexion to 15 degrees, extension to 10 degrees, right and left lateral flexion to 5 degrees, and right and left lateral rotation to 5 degrees. The Veteran reported having to bend his legs or lift his leg to side bend, or turn his entire body to assist in rotation. There was evidence of pain with weightbearing and tenderness to palpitation. Repetitive motion testing did not cause an additional loss of range of motion. The examiner indicated the Veteran was being examined after repeated use over time and during a flareup. His estimated range of motion would be consistent with his range of motion testing documented above during these occasions. He had muscle spasms and localized tenderness that resulted in an abnormal gait. There was evidence of radiculopathy in his bilateral lower extremities. There was no IVDS or ankylosis. In January 2021, the Veteran was afforded another VA examination for his back disability. Here, the Veteran endorsed daily flareups that could last "a couple of hours". Upon examination, he had flexion to 70 degrees, extension to 20 degrees, left and right lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees. There was no tenderness or pain in weightbearing status. Repetitive motion testing did not cause additional loss of range of motion. It was estimated that repeated use over time and flareups did not cause additional functional loss. There was muscle spasms that did not result in abnormal gait or spinal contour. There was no ankylosis or IVDS. There was objective evidence of with passive range of motion, but no in non-weightbearing status. Treatment notes of record show no greater limitations that documented in the VA examinations of record. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's back disability has more nearly approximated the symptoms that are related to a 40 percent disability rating throughout the period at issue. The earliest VA examination of record documented limited range of motion of the Veteran's back well below 30 degrees. While the Veteran achieved greater ranges of motion at his January 2013 VA examination, the Board finds that he would have further limitations during periods of repeated use over time and during flareups, as shown in his April 2011 and October 2016 VA examinations. Thus, the Board finds that a disability rating higher than 40 percent, prior to October 30, 2016, is warranted. However, a rating in excess of 40 percent is not warranted at any time during the period on appeal. To receive a higher disability rating, unfavorable ankylosis of the entire thoracolumbar spine must be shown or exhibit intervertebral disc syndromes (IVDS) with incapacitating episodes. The existing record has not demonstrated that the Veteran's back disability is manifested by unfavorable ankylosis of the spine or IVDS with incapacitating episodes during the relevant period on appeal. Objective and lay evidence of record do not demonstrate that unfavorable ankylosis was present at any time during the period on appeal, even when considering flareups and period of use over time. While the Veteran would not submit to range of motion testing in April 2011, subsequent testing revealed that the spine is not fixed in place, or incapable of any movement all of the time. Therefore, the Board finds that ankylosis has not been approximated. Based on the foregoing, a 40 percent disability rating, prior to October 30, 2016, is granted. A rating in excess of 40 percent, thereafter, is denied. The Board has also considered any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, as consistent with Note 1 of the General Ratings for Disabilities of the Spine. The Veteran is already separately rated for his bilateral lower extremity radiculopathies. The record does not demonstrate that additional separate ratings are warranted. Lastly, the RO has previously considered whether an extraschedular rating is warranted. As such, the Board will consider whether referral for extraschedular consideration is warranted. Ordinarily, the VA rating schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Director of Compensation Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. See 38 C.F.R. § 3.321 (b)(1). Neither the Veteran, nor his representative, has claimed that his back disability symptoms are exceptional or unusual in nature and warrants an extraschedular consideration. Also, the evidence of record does not indicate that the Veteran's service-connected back disability is exceptional or unusual in nature. The Veteran's back disability manifests in pain and limited range of motion. Resultantly, his back disability has caused limitations with prolonged standing and walking, driving, work activities, toileting during flareups and performing yard work. The nature and severity of the Veteran's back disability is contemplated by the rating schedule. Therefore, referral for extraschedular consideration is not warranted. As a final matter, the April 2021 Informal Hearing Presentation makes a general assertion that the "VA examination was inadequate and did not adequately assess his back prior to final adjudication to his prejudice in prosecuting his claim." The Board has reviewed the examinations of record and finds sufficient evidence to decide the claim. Given that the representative has made no specific assertion as to which examination is inadequate, or in what way it is so, the Board will not address this further. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.B. Mmeje, 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.