Citation Nr: 21032411 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 11-18 281 DATE: May 27, 2021 ORDER Entitlement to a rating in excess of 20 percent prior to February 12, 2020, and in excess of 40 percent thereafter, for service-connected lumbosacral strain with residual post-surgical changes of posterior decompression L3-4 through L5-S1 with disc herniation (lumbar spine disability), excluding any periods during which a temporary total rating is in effect, is denied. Entitlement to an initial 20 percent rating, but no higher, for service-connected cervical spine strain with degenerative disc disease and herniated nucleus pulposus (cervical spine disability), is granted effective December 21, 2007, subject to the lay and regulations governing the payment of monetary benefits. Entitlement to a rating in excess of 20 percent prior to February 12, 2020, and in excess of 40 percent thereafter, for service-connected cervical spine disability is denied. FINDINGS OF FACT 1. Prior to February 12, 2020, the Veteran's lumbar spine disability was manifested by pain and forward flexion limited to 60 degrees at its worst. 2. Since February 12, 2020, the Veteran's lumbar spine disability has been manifested by pain and forward flexion limited to30 degrees at its worst without evidence of ankylosis or the functional equivalent of ankylosis. 3. Prior to February 12, 2020, the Veteran's cervical spine disability was manifested by pain and forward flexion limited to 30 degrees at its worst, without evidence of ankylosis or the functional equivalent of ankylosis. 4. From February 12, 2020, the Veteran's cervical spine disability has been manifested by forward flexion of the cervical spine limited to 5 degrees, after a flare-up, without evidence of ankylosis or the functional equivalent of ankylosis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent prior to February 12, 2020, and in excess of 40 percent thereafter, for the Veteran's lumbar spine disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. 2. Prior to February 12, 2009, the criteria for an initial 20 percent disability rating, but no higher, for the Veteran's cervical spine disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237-5242. 3. The criteria for a rating in excess of 20 percent prior to February 11, 2020, and in excess of 30 percent thereafter, for the Veteran's cervical spine disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237-5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1975 to May 1994. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in July 2017 and December 2018. In August 2019, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Remand (Joint Motion) and vacated and remanded the December 2018 Board decision. The case was returned to the Board, which remanded the claims in January 2020. All requested development having been completed, the case has returned to the Board for readjudication. Increased Ratings The Veteran seeks higher initial ratings for his service-connected lumbar spine and cervical spine disabilities. Initially, the Board notes that the Veteran has several periods of temporary, 100 percent ratings assigned for his lumbar spine disability, at times since the start of the appeal period in December 2007. As 100 percent is the maximum rating possible, the ratings during those periods of convalescence are not before the Board. Not including his convalescent ratings, the Veteran is in receipt of a 20 percent rating from December 21, 2007 and a 40 percent rating from February 12, 2020 for his lumbar spine disability, which is rated pursuant to Diagnostic Code 5237. His cervical spine disability is rated as 10 percent disabling from December 21, 2007, 20 percent disabling from February 13, 2009, and 30 percent disabling from February 12, 2020. The disability is rated pursuant to Diagnostic Code 5242-5237. A. Relevant Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). As in the instant case, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. at 126. 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. 3 8 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 Veteran's spine disabilities are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 unfavorable ankylosis of the entire cervical spine; or, 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. 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. Here, the Veteran has already been granted service connection for bilateral peripheral neuropathy of the lower extremities associated with lumbar strain and left upper extremity radiculopathy associated with cervical spine strain. The lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disabilities. 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. The Court has recently held that the requirement of ankylosis in the General Rating Formula for Diseases and Injuries of the Spine can be met with evidence of the functional equivalent of ankylosis, i.e., functional immobility of the joint, during a flare-up. See Chavis v. McDonough, 2020 U.S. App. Vet. Claims, No. 18-2928 (April 16, 2021). Lastly, 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. 76453. The Veteran's cervical spine disability has been rated under Diagnostic Code 5242-5237. Changes were made to Diagnostic Code 5242 noting that the code pertains to degenerative arthritis and degenerative disc disease other than intervertebral syndrome. It is also noteworthy that Diagnostic Code 5243 now applies when there is disc herniation with compression and/or irritation adjacent to the nerve root; if that is not present, a rating under Diagnostic Code 5242 is to be assigned for all other disc diagnoses. See 85 FR 76453, 76463, Nov. 30, 2020. B. Lumbar Spine As noted above, the Veteran is in receipt of a 20 percent rating for his lumbar spine disability prior to February 12, 2020 and a 40 percent rating thereafter. For the period prior to February 12, 2020, excluding any periods during which a temporary total rating is in effect, the Board concludes that a rating in excess of 20 percent is not warranted. In this regard, range of motion testing performed at VA examinations in June 2008, May 2009, and September 2017 revealed forward flexion to 60 degrees, with no additional limitation after repetitive use. Although pain was noted on examination, it did not result in additional limitation of motion. In a March 2018 addendum opinion, a VA examiner noted that the Veteran reported taking Advil as needed for pain and occasionally used heat. The examiner noted that Advil relieves pain and therefore could lead to an increase in function. However, the examiner stated that it was not possible to determine any change in range of motion without the Advil, without resorting to speculation. The Board acknowledges that forward flexion of the lumbar spine was limited to at worst, 20 degrees, at a February 2009 VA contract examination. As noted in a prior Board decision, the Veteran, at that time, was in receipt of a 100 percent rating based on convalescence. All range of motion testing during that time period where the Veteran was not in receipt of a temporary total rating showed forward flexion limited to, at worst, 60 degrees. The Board further acknowledges that the Court, in an August 2019 Joint Motion, directed the Board to address the adequacy of the September 2017 VA examination and March 2018 VA addendum opinion in consideration of functional loss due to other factors such as pain, weakness, fatigue, and lack of endurance. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45. To the extent that the VA examiner did not describe additional loss of function after a flare-up at the September 2017 examination and indicated that it was not possible to determine loss of range of motion without resorting to speculation, the Board notes that the Veteran, at that examination, specifically denied experiencing flare-ups. While the examiner was also unable to describe loss of range of motion after repetitive use, the remainder of the report does not suggest that the Veteran's range of motion would be reduced by an additional 30 degrees after repetitive use. Indeed, the Veteran was able to perform repetitive-use testing with at least three repetitions without any additional loss of function. Also, VA treatment records show that during that time period, the Veteran complained of sharp, stabbing pain, but did not indicate to any providers that his range of motion was restricted. Rather, the medical evidence is clear that there was a noticeable worsening of the Veteran's lumbar spine condition at his February 2020 VA examination, at which time he endorsed flare-ups that he said occurred daily (flare-ups he had not endorsed at the September 2017 examination), lasted up to an hour, and were moderate to severe. He described limited range of motion, difficulty with heavy lifting, bending, prolonged walking and standing. Thus, the Board finds that the Veteran's lumbar spine rating was properly increased as of the February 2020 VA examinationbut that a rating in excess of 40 percent from February 12, 2020, is not warranted. In this regard, at the February 2020 examination, the Veteran demonstrated forward flexion limited to, at worst, 30 degrees after a flare-up. There was no evidence of ankylosis and no evidence that he suffers from functional loss that is the functional equivalent of ankylosis. See Chavis, supra. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. See February 2021, September 2017 VA examination reports. For the foregoing reasons, the preponderance of the evidence is against entitlement to a rating in excess of 20 percent for the Veteran's lumbar spine disability prior to February 12, 2020, and in excess of 40 percent thereafter. In denying higher ratings, the Board finds that the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. C. Cervical Spine As noted above, the Veteran is in receipt of a 10 percent rating from December 21, 2007, a 20 percent rating from February 13, 2009, and a 30 percent rating from February 12, 2020, for his cervical spine disability. For the reasons that follow, the Board finds that an increased initial rating of 20 percent is warranted for the period from December 21, 2007 to February 13, 2009. Indeed, at a June 2008 examination, the Veteran had forward flexion limited to 40 degrees, extension limited to 40 degrees, right lateral flexion to 15 degrees, left lateral flexion to 25 degrees, and left and right lateral rotation to 40 degrees, with no additional limitation after repetition. The combined range of motion was 200 degrees. The examiner specifically noted that although pain was noted on examination, it did not result in additional limitation of motion. There was also no evidence of cervical muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour. While a finding of 40 degrees of flexion does not warrant a higher rating of 20 percent pursuant to the General Rating Formula for Disease and Injuries of the Spine, the Veteran indicated in his October 2008 Notice of Disagreement that on the day of his June 2008 examination, he was medicated with hydrocodone, acetaminophen, Lyrica, Flexeril, and ibuprofensuch that he had the ability to demonstrate fuller range of motion. Without the medication, however, he explained that his flexibility was very limited. Given that the Veteran demonstrated 40 degrees of flexion at the June 2008 examination, the Board finds it reasonable, given his statements, that without medication his range of motion might be limited by an additional 10 degrees. That is especially likely given that he demonstrated flexion limited to 30 degrees at the February 2009 examination. Accordingly, after resolving all doubt in the Veteran's favor, the Board finds that he is entitled to a 20 percent rating for his cervical spine disability for the time period from December 21, 2007 through February 13, 2009. That stated, the Board concludes that a rating in excess of 20 percent for the entire time period prior to February 12, 2020, is not warranted. In this regard, as noted above, the Veteran demonstrated 30 degrees of flexion at a February 2009 examination, without any pain. Flexion was not additionally limited after three repetitions. At a May 2009 VA examination, the Veteran demonstrated forward flexion of the cervical spine to 40 degrees, with extension to 40 degrees, lateral flexion to 35 degrees on both sides, and lateral rotation to 60 degrees on both sides. At a September 2017 VA examination, the Veteran again reported the use of pain relievers as needed. He denied experiencing flare-ups. Range of motion testing showed forward flexion to 45 degrees and extension to 30 degrees. He stated that he had limitations with neck rotation in terms of looking behind his back or overhead. The Veteran was able to perform repetitive use testing with at least three repetitions without additional loss of range of motion. However, the examiner indicated that the Veteran was not being examined immediately after repetitive use over time and that she could not express without speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time. In a March 2018 addendum opinion, the examiner indicated that the Veteran's reported use of Advil meant that when taking the medication, he would have an increase in function. However, the examiner, after reviewing all the medical records, was unable to find any documented progress notes during flare-ups, and such, was unable to opine on any change in range of motion without resorting to mere speculation. As noted above, the August 2019 Joint Motion questioned the adequacy of the September 2017 and March 2018 opinions. As noted above, the Veteran did not endorse flare-ups at the September 2017 VA examination. Although the examiner was also unable to express without speculation whether pain, weakness, fatigability, or incoordination would significantly limit functional ability with repeated use over time, the remainder of the report does not suggest that the Veteran's range of motion would be reduced by an additional 30 degrees after repetitive use. Indeed, the Veteran demonstrated full flexion on initial range of motion testing and while pain was noted on examination, it did not result in any functional loss. Also, the Veteran was able to perform repetitive-use testing without additional loss of range of motion after three repetitions. Given the foregoing, and even in consideration of the Veteran's reports of reduced range of motion, the evidence does not suggest that cervical spine flexion would be limited to 15 degrees, so as to warrant a higher rating. Finally, the Board finds that a rating in excess of 30 percent since February 12, 2020, is not warranted. In this regard, to obtain a rating in excess of 30 percent, the evidence would need to show either unfavorable ankylosis of the entire cervical spine or of the entire spine. There is simply no lay or medical evidence indicating that the Veteran experienced ankylosis of the cervical spine; indeed, he has never contended as much. The February 2020 VA examiner specifically noted, upon examination, that there was no ankylosis. In so finding, the Board has also considered whether the evidence has shown functional loss consistent with that contemplated by ankylosis. See Chavis, supra. Despite the Veteran's statements at the February 2020 examination that he experienced increased pain and decreased range of motion, the evidence, medical or lay, has never shown that the Veteran suffers from functional loss that is the functional equivalent of ankylosis. Indeed, while the February 2020 VA examiner indicated that the Veteran could have forward flexion limited to 5 degrees after a flare-up, indicating very severe and restrictive range of motion, the Veteran himself explained that his flare-ups manifested in limited range of motion and difficulty with heavy lifting. He did not state that his cervical spine was ankylosed during a flare-up. The Board adds that it has considered whether a higher rating may be warranted under Diagnostic Code 5242including the revised version of Diagnostic Code 5242but as that section only allows for a maximum 20 percent rating, there is no benefit to the Veteran in doing so. Therefore, for the foregoing reasons, the Board concludes that a higher rating of 20 percent is warranted for the time period prior to February 13, 2009. A rating in excess of 20 percent is denied for the entire time period prior to February 12, 2020, and a rating in excess of 30 percent is denied for the time period since February 12, 2020. James Springer Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Polly Johnson, 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.