Citation Nr: 21032704 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-32 446 DATE: May 27, 2021 ORDER Entitlement to a rating in excess of 20 percent for service-connected disc degeneration of L5-S1 is denied. FINDING OF FACT The most probative evidence of record reflects that the Veteran's disc degeneration of L5-S1 does not result in forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for disc degeneration of L5-S1 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1979 to August 2002. The Board thanks the Veteran for his many years of service to our country. The Veteran testified before the undersigned Veterans Law Judge during a July 2019 hearing. A transcript of the hearing is in the record before the Board. In July 2019, the Board remanded the issue of entitlement to a rating in excess of 10 percent for service-connected disc degeneration of L5-S1 for additional development. A June 2020 rating decision assigned a 20 percent evaluation to this disability, effective September 14, 2015, the date of receipt of the Veteran's claim for an increased evaluation. The rating decision also assigned a 20 percent evaluation for the Veteran's radiculopathy, left lower extremity affecting the sciatic nerve. During the July 2019 hearing, the Veteran expressly testified that he was satisfied with the current ratings for right and left radiculopathy that were granted during the course of the appeal. As a result, the Board's July 2019 remand did not address the associated radiculopathy ratings. In light of the Veteran's hearing testimony making clear that he was not seeking increased evaluations or compensation for his right and left radiculopathy and the lack of disagreement with the June 2020 rating decision in this regard, the Board's present decision will not address the radiculopathies. The Board finds that there has been substantial compliance with the remand and will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a rating in excess of 20 percent for service-connected disc degeneration of L5-S1 is denied. The Board observes that the rating period on appeal begins September 14, 2015, the date the Veteran submitted his claim for an increased evaluation. The Board has reviewed the record to determine whether it is factually ascertainable that an increase occurred within a year prior to the date of claim and finds that the evidence is against a finding that the Veteran's low back disability worsened such that it was factually ascertainable that an increase had occurred within that year. In general, ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. An exception to this rule applies when the rating criteria are successive. In such a case, all the requirements of the lower levels must be met before a higher level is awarded, and 38 C.F.R. §§ 4.7 and 4.21 do not apply. Johnson v. Wilkie, 30 Vet. App. 245 (2018). In a claim for increase in a previously established rating, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the evidence contains factual findings that demonstrate distinct time periods when the service connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, staged ratings are to be considered. Hart v. Mansfield, 21 Vet. App. 505 (2007). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to factors such as disability causing less movement than normal, more movement than normal, weakened movement, excess fatigability, and incoordination. The United States Court of Appeals for Veterans Claims (Court) has held that Diagnostic Codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca, supra, at 206. The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West,13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pain, in and of itself, that does not result in additional functional loss does not warrant a higher rating; the Court held that pain alone does not constitute functional loss but is just one fact to be considered when evaluating functional impairment. Id. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (citing 38 C.F.R. § 4.40). 38 C.F.R. § 4.40 (functional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded); see Schafrath, supra. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Veteran's disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. During the pendency of this appeal, VA promulgated new regulations governing ratings for the musculoskeletal system and muscle disabilities, effective February 7, 2021. See 85 Fed. Reg. 76,453 (Nov. 30, 2020). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change. In pertinent part, 38 C.F.R. § 4.71a, Diagnostic Code 5242 for degenerative arthritis of the spine was revised to apply to degenerative arthritis, degenerative disc disease other than IVDS. Significantly, the actual rating criteria relevant to Diagnostic Code 5242 (the General Rating Formula for Diseases and Injuries of the Spine) were not changed. Under the criteria effective prior to February 7, 2021, Diagnostic Code 5242 evaluates degenerative arthritis. Diagnostic Code 5242 provides that degenerative arthritis is to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine. A 20 percent rating is warranted 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 rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar 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. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Id. at Note 2 (See also Plate V.). 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, General Rating Formula at Note 5. Application of 38 C.F.R. §§ 4.40 and 4.45 permit consideration under the Spine Formula of a rating based on ankylosis, if a veteran's functional loss is the functional equivalent of ankylosis. Chavis v. McDonough, No. 18-2928 (U.S. Vet. App. Apr. 16, 2021). The Veteran contends that his disc degeneration of L5-S1 warrants an evaluation in excess of 20 percent. During the hearing, he contended that if an October 2015 VA examination of his spine had been done correctly it would have supported a 40 percent evaluation. He asserted that the examination was inadequate. He stated that he did cooperate during the examination and did attempt the perform the range of motion of testing, despite the report saying he had refused to do so. He stated that an April 2016 private right-sided L5-S1 laminotomy and foraminotomy did improve his leg pain but did not change his back. See July 2019 hearing transcript. During the hearing, the Veteran submitted an annotated copy of the October 2015 VA examination report explaining that he was in pain during the examination but did not refuse range of motion testing in any way. He explained in detail how the pain meant that he was able to do very little movement when he got dressed after the examination. The report of the October 2015 VA examination provides no range of motion testing results. The report related that the Veteran stated that he was unable to do any range of motion without unbearable pain. However, the report pointed out that he was able to fly from Fairbanks on an aircraft, sit in a chair, rise from the chair, get off and on the examination table, and put his shoes and pants on and off. The report documented that when the Veteran was asked to do range of motion studies, he refused due to the fact that he said it was too painful. The 2015 VA examiner specifically found that there was no ankylosis of the spine. Further, the examiner stated that the low back disability impacted the Veteran's ability to perform physical labor but did not impact his ability to do non-physical work including "typing/computer work, filing, answering the phone, and greeting customers." Based on the evidence noted and observed by the VA examiner, that the Veteran was able to fly from Fairbanks on an aircraft, sit in a chair, rise from the chair, get off and on the examination table, and put his shoes and pants on and off, which was inconsistent with the Veteran's report of unbearable pain with motion of the back, the Board finds the Veteran's statements in this regard less than credible. Further, based on the examiner's report of no ankylosis and observation of the Veteran's spinal movement, the Board does not find that the Veteran had functional loss that was the functional equivalent of ankylosis at that time. Based on the evidence, the Board concludes that VA satisfied its duty to assist the Veteran at the time of the examination and the lack of information regarding the Veteran's range of motion and severity of his back disability at this time was due to lack of cooperation on the part of the Veteran. Private treatment records reflect that during physical therapy in November 2015, the Veteran's range of motion was forward bending 25 percent, backward bending 25 percent, and rotation 10 percent bilaterally. The Board notes that the fact that the limited motion was described in percentages rather than degrees makes it unclear whether the examining physical therapist utilized a goniometer or simply estimated the Veteran's range of motion. In fact, there is no indication that the Veteran's range of motion was measured by a goniometer, as required by VA regulations. See 38 C.F.R. § 4.46 (the use of a goniometer in the measurement of limitation of motion is indispensable in examinations). In addition, the November 2015 range of motion findings are drastically inconsistent with the December 2019 VA examination report discussed below, which found forward flexion to 40 degrees and full rotation bilaterally. As the Veteran testified during the hearing that the April 2016 private surgery did not change his back, the greater range of motion displayed in December 2019 cannot be explained as post-surgical improvement and accordingly appears to be a more accurate reflection of the Veteran's lumbar spine range of motion. As a result, the Board does not find that the November 2015 isolated non-conforming measurements are sufficiently reliable to form the basis for a staged rating. Private treatment records also reflect that the Veteran underwent right-sided L5-S1 laminotomy and foraminotomy in April 2016. The report of the December 2019 VA Back (Thoracolumbar Spine) examination related that the Veteran reported flare-ups that he described as constant back pain even at rest. The Veteran also reported that bending, twisting, rotating, prolonged sitting and standing, and prolonged sleeping/laying in bed were aggravating factors. The Veteran avoided physical activities that aggravated his back. The examiner stated that the examination took place during a flareup. On physical examination, the Veteran had initial forward flexion to 40 degrees, extension to 5 degrees, lateral flexion to 30 degrees bilaterally, and rotation to 30 degrees bilaterally, with pain in all motions. Pain caused limited range of motion. There was evidence of pain on weightbearing. The Veteran was able to perform repetitive-use testing with at least three repetitions. There was no additional loss of function or range of motion after three repetitions. Pain significantly limited functional ability with repeated use over time. The examiner described this in terms of range of motion as forward flexion to 40 degrees, extension to 5 degrees, lateral flexion to 30 degrees bilaterally, and rotation to 30 degrees bilaterally. The examination was being conducted during a flare-up. Pain significantly limited functional ability with flare-ups. The examiner described this in terms of range of motion as forward flexion to 40 degrees, extension to 5 degrees, lateral flexion to 30 degrees bilaterally, and rotation to 30 degrees bilaterally. There were no other additional contributing factors of disability. The Veteran did not have intervertebral disc syndrome. His disability impacted his ability to work. Constant back pain slowed him down at work. There was evidence of pain on passive range of motion and when the joint was used on non-weight-bearing. The Veteran had constant back pain even at rest. Regarding Mitchell, the Veteran had pain and forward flexion to 40 degrees, extension to 5 degrees, lateral flexion to 30 degrees bilaterally, and rotation to 30 degrees bilaterally. The Board finds that the preponderance of the evidence is against an evaluation in excess of 20 percent under the General Rating Formula for Diseases and Injuries of the Spine. The foregoing evidence does not show forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Again, the Board observes that the November 2015 private range of motion findings are not sufficiently reliable to form the basis for a staged rating. The Board acknowledges the Veteran's lay reports of pain, as made during the hearing and the VA examinations. He is competent to report his symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). As noted above, a higher rating for the low back was awarded during the appeal for the entire appeal period. However, even considering these reports, the record does not show limitation of motion approximating forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. In this regard, the December 2019 VA examination found that even with pain the Veteran's forward flexion was to 40 degrees. Accordingly, the December 2019 findings do not warrant a 40 percent evaluation under the General Rating Formula for Diseases and Injuries of the Spine. The Board also finds that the preponderance of the evidence is against finding of additional neurological impairment such that any further, separate compensable rating is warranted. The Board recognizes that the December 2019 VA examination report states that the Veteran had other neurological abnormalities or findings such as bowel or bladder problems/pathological reflexes. However, the report does not identify any such neurological abnormalities or findings. It does specify that the Veteran had no other pertinent physical findings, complications, signs or symptoms related to his spine disability. Moreover, the Veteran himself has not asserted that he has bowel or bladder problems/pathological reflexes. Thus, the Board finds that the preponderance of the evidence supports a finding that the Veteran's spine disability does not result in additional neurological impairment, such as bowel or bladder problems/pathological reflexes, such that a separate compensable rating is warranted. For the foregoing reasons, the Board finds that the preponderance of the evidence is against an evaluation in excess of 20 percent for disc degeneration of L5-S1. In denying an evaluation in excess of 20 percent, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Davitian, 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.