Citation Nr: 21031583 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 15-22 185 DATE: May 24, 2021 ORDER The issue of entitlement to an effective date earlier than September 25, 2012, for the award of service connection for a back disability is dismissed. Before January 26, 2021, a rating of 20 percent for a back disability is granted. On and after January 26, 2021, a rating in excess of 20 percent for a back disability is denied. FINDINGS OF FACT 1. Before the promulgation of a decision in the appeal, the Veteran, through his representative, requested the withdrawal of his appeal of the claim for an effective date earlier than September 25, 2012, for the award of service connection for a back disability. 2. While the Veteran's back disability has resulted in forward flexion limited to 60 degrees throughout the appeal, it has not resulted in forward flexion limited to 30 degrees or less, ankylosis, or incapacitating episodes of intervertebral disc disease (IVDS). CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim for service connection for an effective date earlier than September 25, 2012, for the award of service connection for a back disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. Before January 26, 2021, the criteria for a rating of 20 percent for a back disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5243. 3. On and after January 26, 2021, the criteria for a rating in excess of 20 percent for a back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1986 to September 1989. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of the Agency of Original Jurisdiction (AOJ) granting service connection for a back disability effective September 25, 2012, and assigning an initial 10 percent rating. An April 2021 rating decision increased the rating for a back disability to 20 percent effective January 26, 2021. A Board hearing was scheduled in April 2019. The Veteran failed to report to the hearing without explanation. Accordingly, the Board will proceed as if the hearing request had been withdrawn. 38 C.F.R. § 20.704(d). Withdrawn Claim The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. In this case, in May 2019, the Veteran's representative stated that the Veteran wished to withdraw the issue of entitlement to an effective date earlier than September 25, 2012, for the award of service connection for a back disability. This communication satisfies the requirements for withdrawal set out at 38 C.F.R. § 19.55. The Veteran has therefore withdrawn this appeal, and there remain no allegations of errors of fact or law for appellate consideration. The Board does not have jurisdiction to review the appeal of the claims of entitlement to an effective date earlier than September 25, 2012, for the award of service connection for a back disability, and this issue is dismissed. Increased Rating Spine disabilities are evaluated under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. The General Rating Formula for Diseases and Injuries of the Spine provides for the following ratings, in pertinent part: 20 percent: 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. 40 percent: Forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 50 percent: Unfavorable ankylosis of the entire thoracolumbar spine. 100 percent: Unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. "Ankylosis" is immobility and consolidation of a joint due to a disease, injury, or surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992). The Formula for Rating IVDS Based on Incapacitating Episodes rates lumbar spine disabilities as follows, in pertinent part: 20 percent: Incapacitating episodes having a total duration of at least two weeks but fewer than four weeks during the past 12 months. 40 percent: Incapacitating episodes having a total duration of at least four weeks but fewer than six weeks during the past 12 months. 60 percent: Incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5237. An "incapacitating episode" is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. This revision did not, however, change the General Rating Formula for Diseases and Injuries of the Spine, nor did it change the Formula for Rating IVDS Based on Incapacitating Episodes. 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). Therefore, the revised criteria effective February 7, 2021, are not applicable in this case and the Board will not consider them. Turning to the facts in this case, the Veteran filed his underlying claim for service connection for a back disability in September 2012. The Veteran underwent an examination in July 2013, at which time the examiner diagnosed the Veteran with spondylosis. The Veteran described experiencing episodes of low back pain that he treated with chiropractic care and physical therapy. The Veteran denied experiencing flare-ups of symptoms. The Veteran had forward flexion to 70 degrees, extension to 30 degrees or greater, bilateral lateral flexion to 30 degrees or greater, and bilateral lateral rotation to 30 degrees or greater. The Veteran showed no evidence of painful motion. While repetitive use testing did not result in an additional loss of motion, the examiner noted that the Veteran experienced functional losses in the form of less movement than normal and excess fatigability. The Veteran did not experience additional functional limitation after repeated use over time and during flare-ups. There was no muscle spasm or guarding of the back. The Veteran did not have ankylosis or IVDS. The Veteran underwent an additional examination in September 2015, at which time the examiner diagnosed the Veteran with degenerative arthritis of the spine. The Veteran described experiencing a baseline level of back pain of a 3/10 severity that flared to a 7/10 severity every 2 weeks. The examiner noted that the Veteran experienced functional losses in the form of limited activity, impaired bending, impaired lifting, and an impaired ability to engage in heavy physical work. The Veteran had forward flexion to 70 degrees, extension to 15 degrees with pain, bilateral lateral flexion to 20 degrees, and bilateral lateral rotation to 30 degrees. The Veteran did not show pain with weight-bearing. Repetitive use testing did not result in an additional limitation of motion or other loss of function. The pain associated with repeated use over time limited the Veteran's ability to engage in repetitive bending, lifting, and heavy physical activity. Similarly, the pain associated with flare-ups limited the Veteran's ability to engage in activities for up to two days. There was no muscle spasm or guarding of the back. The Veteran did not have ankylosis or IVDS. The Veteran underwent an additional examination in February 2021, at which time the examiner diagnosed the Veteran with degenerative disc disease, IVDS, and spondylosis. The Veteran described experiencing daily flare-ups of severe back pain that were precipitated by activity. The Veteran had both passive and active forward flexion to 65 degrees, extension to 20 degrees, bilateral lateral flexion to 20 degrees, and bilateral lateral rotation to 20 degrees. The Veteran had pain with all motion testing, but such pain did not result in a functional loss. Repetitive use testing did not result in an additional limitation of motion or other loss of function. While the Veteran experienced pain with repeated use over time, such functional impairment did not result in an additional limitation of motion. While the Veteran was not being examined during a flare-up, the examiner noted that pain associated with flare-ups resulted in forward flexion to 60 degrees, extension to 15 degrees, bilateral lateral flexion to 15 degrees, and bilateral lateral rotation to 15 degrees. There was no muscle spasm or guarding of the back. The Veteran's back disability caused interference with sitting, interference with standing, and disturbance of locomotion. The Veteran was unable to sit or stand for more than 10 minutes at a time, walk more than one-quarter mile, lift more than 10 pounds, run, or jump. The Veteran did not have ankylosis. The examiner noted that the Veteran had IVDS with episodes of bed rest having a total duration of at least 2 weeks but fewer than 4 weeks during the past 12 months. The examiner's observation was based on the Veteran's report that he spent at least 3 days in his bed each month as a result of back pain. The Veteran underwent an additional examination in March 2021, at which time the examiner diagnosed the Veteran with spondylosis. The Veteran described experiencing lower back pain that limited his ability to perform everyday activities. The Veteran described experiencing flare-ups of back pain up to two times monthly, with each flare-up lasting between one day and two weeks. Activities such as walking or engaging in yard work precipitated such flare-ups. The Veteran had both passive and active forward flexion to 60 degrees, extension to 20 degrees, bilateral lateral flexion to 20 degrees, and bilateral lateral rotation to 20 degrees. The Veteran had pain with all motion testing. Repetitive use testing did not result in an additional limitation of motion or other loss of function. While the Veteran experienced pain with repeated use over time, such functional impairment did not result in an additional limitation of motion. The pain associated with flare-ups resulted pain resulted in forward flexion to 55 degrees, extension to 15 degrees, bilateral lateral flexion to 15 degrees, and bilateral lateral rotation to 15 degrees. There was no muscle spasm or guarding of the back. The Veteran's back disability caused interference with sitting, interference with standing, and disturbance of locomotion. The Veteran was unable to sit or stand for more than 10 minutes at a time, walk more than one-quarter mile, lift more than 10 pounds, run, or jump. The Veteran did not have ankylosis or IVDS. In addition to the results of these VA examinations, the Board has reviewed the Veteran's VA and private treatment records, which show that the Veteran has consistently received treatment, including medication, steroid injections, physical therapy, and chiropractic for chronic back pain throughout the appeal. In April 2019, the Veteran submitted a private clinician's Disability Benefits Questionnaire (DBQ), which diagnosed the Veteran with mechanical back pain syndrome, facet joint arthropathy, degenerative disc disease, foraminal or central stenosis, and IVDS. The Veteran described experiencing lower back pain that affected all of his activities of daily living. The Veteran had forward flexion to 20 degrees, extension to 10 degrees, right lateral flexion to 20 degrees, left lateral flexion to 10 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 30 degrees. The Veteran had pain with all motion. Repetitive use testing resulted in forward flexion to 10 degrees, extension to 10 degrees, right lateral flexion to 20 degrees, left lateral flexion to 10 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 15 degrees. Muscle spasms and guarding resulted in an abnormal gait and spinal contour. The Veteran experienced functional losses in the form of less movement than normal, weakened movement, excess fatigability, incoordination, painful movement, deformity, atrophy of disuse, disturbance of locomotion, interference with standing, and interference with sitting. These functional losses limited forward flexion to 5 degrees, extension to 0 degrees, right lateral flexion to 10 degrees, left lateral flexion to 0 degrees, right lateral rotation to 0 degrees, and left lateral rotation to 10 degrees. The clinician stated that "any repeated use of [the] lumbar spine [would] result in 100 percent loss of range of motion and result in bed rest". The clinician noted that the Veteran had IVDS with episodes of bed rest having a total duration of at least 2 weeks but fewer than 4 weeks during the past 12 months. Clinicians have otherwise noted that symptoms such as pain, stiffness, and tenderness affected the Veteran's low back. For example, in March 2016, a clinician noted that the Veteran had a "mild decrease" in his range of motion as the result of pain. In April 2017, a clinician noted the Veteran's complaints of low back pain of a 3-5/10 severity. The Veteran had flexion "to the mid tibia", extension to 5 degrees, right lateral bending to 30 degrees, and left lateral bending to 30 degrees. In September 2017, the Veteran reported back pain of a 1-3/10 severity, with flare-ups to 6/10. In March 2018 and October 2018, clinicians noted that that pain and stiffness limited the range of motion of the Veteran's back. In May 2018, a clinician noted that the Veteran's active and passive range of motion was normal, except that his lumbar extension was decreased. In November 2018, the Veteran reported experiencing pain of a 1/10 severity. In December 2018, a clinician noted that the Veteran experienced episodic sharp, aching pain with morning stiffness. The Veteran indicated that his pain was of a 3/10 severity at that time. These treatment records show a symptom picture that is broadly consistent with the above-noted observations of VA examiners. Consideration has also been given to the lay contentions regarding the Veteran's symptoms. Throughout his appeal, the Veteran has described experiencing low back pain that affected his functional ability. For example, in April 2019, the Veteran stated that his activities were limited during flare-ups of back pain, with each flare-up lasting up to a week. In April 2019, the Veteran's spouse stated that flare-ups of the Veteran's back pain lasted from a few days to a week at a time. Even without flare-ups, the Veteran's spouse stated that the Veteran experienced constant pain that prevented him from standing or walking. The Veteran's spouse otherwise stated that the Veteran could not bend over. Turning to an analysis of these facts, the Veteran's back disability is rated 10 percent disabling before January 26, 2021, and 20 percent disabling thereafter. The Board will first address whether a rating in excess of 20 percent is warranted at any time. Such a rating requires either ankylosis of the spine or a limitation of forward flexion to 30 degrees or fewer. At no time has a clinician or examiner found the Veteran's back to be ankylosed, or immobile, nor has the Veteran so argued. Instead, though the Veteran has experienced pain with movement of the low back throughout the appeal, the weight of the evidence, including the findings of examiners in September 2012, September 2015, February 2021, and March 2021, shows that the Veteran has consistently maintained a range of motion of the thoracolumbar spine. The weight of the evidence does not support a finding that the Veteran has experienced ankylosis, or immobility of the spine, at any time. In making this determination, the Board has considered the finding of the private DBQ from April 2019 that repeated use of the spine resulted in a total loss of all motion, which suggests that the spine was ankylosed. The Board, however, places relatively little probative weight on this finding, and on the findings of the April 2019 DBQ generally. The April 2019 DBQ contains findings, including those pertaining to possible ankylosis, that are inconsistent with the remainder of the evidence both before and after April 2019 showing that the Veteran indeed retained motion in his spine. The Veteran has never sought medical treatment for complaints of total immobility of the spine. Similarly, neither VA examiners, nor VA clinicians, nor private clinicians have observed the Veteran to have total immobility of the spine. The Veteran himself, in an April 2019 statement, described retaining mobility in his back, albeit with pain, except during flare-ups, during which time he reported an inability to "do much of anything". Thus, notwithstanding the notation in the April 2019 DBQ, the Board finds the weight of the evidence not to support a finding that the Veteran has experienced ankylosis, or immobility of the spine, at any time. The Board similarly finds the weight of the evidence not to support a finding that the Veteran's back has been functionally limited to 30 degrees of forward flexion or fewer at any time, even considering his symptoms following repeated use, with repeated use over time, and during flare-ups. Such a finding is consistent with range of motion testing found in examination reports from September 2012, September 2015, February 2021, and March 2021, VA treatment records, and private treatment records. In making this determination, the Board has considered the findings of the private DBQ from April 2019 that the functional impairment resulted in the Veteran having only 5 degrees of forward flexion. The Board has additionally considered lay statements, for example from April 2019, suggesting that the Veteran's forward flexion was limited to 30 degrees or fewer. The Board places relatively little probative weight in this evidence, however, because the findings and reports are inconsistent with the remainder of the evidence of record both before and after April 2019 showing that the Veteran retained a greater degree of motion in his spine. Neither VA examiners, nor VA clinicians, nor private clinicians have observed the Veteran to have flexion limited to 30 degrees or fewer. The Board finds it to be likely that the Veteran would have complained of such symptoms to clinicians, and that clinicians would have recorded such symptoms, had the findings of the April 2019 clinician indeed been representative of the functional impairment associated with the Veteran's back disability. Thus, notwithstanding the notation in the April 2019 DBQ and the Veteran's lay reports, the Board finds the weight of the evidence not to support a finding that the Veteran has experienced a functional impairment of forward flexion to 30 degrees or fewer at any time. While a rating in excess of 20 percent unwarranted at any time, the Board finds that a 20 percent rating for the Veteran's back disability is indeed warranted before January 26, 2021. Such a rating is associated with a limitation of flexion to 60 degrees. In February 2021, an examiner indicated that the Veteran's daily flare-ups resulted in forward flexion to 60 degrees, and the AOJ awarded the Veteran with a 20 percent rating on the basis of these findings. With that said, the findings of the February 2021 examiner are by nature a backwards-looking summary of the Veteran's reported symptoms during flare-ups. The evidence of record shows a symptom picture that is broadly consistent with the findings of the February 2021 examiner that frequent flare-ups resulted in a limitation of flexion to 60 degrees. Affording the Veteran with the benefit of the doubt, a single 20 percent rating is warranted for the Veteran's back disability throughout the appeal. The Board will next consider whether greater ratings are warranted under the Formula for Rating IVDS Based on Incapacitating Episodes. The record shows that the Veteran indeed has IVDS. With that said, a rating in excess of 20 percent requires not only such a diagnosis, but also the presence of incapacitating episodes with bed rest and treatment prescribed by a physician. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. In this case, the weight of the evidence, including the findings of examiners in September 2012, September 2015, and March 2021, does not support a finding that the Veteran has experienced incapacitating episodes with physician-prescribed bed rest. While the February 2021 examiner found that the Veteran had indeed experienced incapacitating episodes, such observation was based only upon the Veteran's self-reported medical history, which is not otherwise supported by the medical evidence of record. This notation alone, therefore, does not support the award of a rating in excess of 20 percent on the basis of IVDS. In sum, the evidence does not show the presence of incapacitating episodes of IVDS, and the criteria for a greater rating based on IVDS have not been met. In making these determinations, the Board has considered the Veteran's functional loss due to factors such as pain, weakened movement, excess fatigability, and incoordination that cause additional disability beyond that which is reflected on range of motion measurements. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board accepts the Veteran's competent and credible assertions that his service-connected back disability causes him to experience pain, and the Veteran's existing ratings have been assigned based in part on those assertions. The rating schedule does not require a separate rating for pain itself. Spurgeon v. Brown, 10 Vet. App. 194 (1997). The Board has also considered the effects of flare-ups on the Veteran's functioning. Sharp v. Shulkin, 29 Vet. App. 26 (2017); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Such flare-ups must be quantifiable and result in a limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flare-up must be of a sufficient length to establish a greater severity of overall impairment, rather than a brief snapshot in time. The Board's above analysis considers the Veteran's reports of the nature and extent of his flare-ups and finds that these reports do not warrant a rating in excess of 20 percent. Generally, when evaluating diseases and injuries of the spine, the Board is to separately evaluate any associated neurological abnormalities. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). In this case, however, an April 2021 rating decision granted service connection for radiculopathy of the lower extremities. The Veteran was provided with appellate rights in conjunction with this decision, and he has not, to date, disagreed with this decision. Thus, while the Board acknowledges that neurological manifestations may be rated as part a claim for an increased rating for a back disability, given the Veteran's lack of disagreement with the April 2021 rating decision, the Board will not address neurological manifestations at this time. N. NELSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.A. Flynn, 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.