Citation Nr: 21040803 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 16-31 778 DATE: July 7, 2021 ORDER An increased rating higher than 20 percent for a thoracolumbar spine disorder, to include lumbosacral strain, degenerative disc disease, degenerative joint disease and intervertebral disc syndrome is denied. An increased rating higher than 20 percent for a right foot disorder, to include pes planus and plantar fasciitis is denied. FINDINGS OF FACTS 1. For the entirety of the rating period on appeal, the severity of the Veteran's thoracolumbar spine disorder manifested, at worst, as 50 degrees flexion with a combined range of motion of 125 degrees and painful motion. 2. For the entirety of the rating period on appeal, the severity of the Veteran's right foot disorder manifested as pain on manipulation, use accentuated, swelling on use, characteristic callosities and not improved by orthopedic shoes or appliances. CONCLUSIONS OF LAW 1. The criteria to establish an increased rating higher than 20 percent for the entirety of the rating period on appeal for a thoracolumbar spine disorder have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code (DC) 5243. 2. The criteria to establish an increased rating higher than 20 percent for the entirety of the rating period on appeal for a right foot disorder have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5269, 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from June 1985 to April 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of the Columbia, South Carolina Regional Office (RO). In the October 2013 rating decision on appeal, VA denied an increased rating for a thoracolumbar spine disorder and denied service connection for right and left lower extremity radiculopathy. Although the Veteran submitted a timely notice of disagreement (NOD) as to all three claims, the Veteran was subsequently granted service connection and assigned 10 percent ratings for right and left lower extremity radiculopathy. The Veteran did not appeal the radiculopathy ratings and they were not addressed in the October 2018 Board remand. Therefore, the Veteran was on notice that the radiculopathy ratings were not part of the appeal as to his thoracolumbar spine disorder and he would have no expectation that such ratings would be on appeal. Chavis v. McDonough, No. 18-2928 (U.S. Vet. App., decided April 16, 2021) (finding that in some circumstances radiculopathy ratings are part of the claim for an increased rating of the spine even if a separate NOD was not filed, but the Court specifically declined holding that in "all" cases neurological ratings are within the scope of increased rating spine claims). In August 2017, the Veteran was afforded a videoconference hearing before a Veterans Law Judge (VLJ) no longer employed by the Board. During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claims. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. In October 2018, the Board remanded the appeal to the RO for additional action. There was substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In November 2020, VA notified the Veteran that the VLJ who conducted the August 2017 Board hearing was no longer employed by the Board and that the Veteran had 30 days from the date of the letter to request another Board hearing. The Veteran declined another Board hearing. 38 C.F.R. § 20.604. Increased Rating Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155. When there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Changes to the rating schedule for musculoskeletal disabilities became effective on February 7, 2021. The amended criteria, if favorable to the Veteran's claim, can only be applied for the period 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. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thoracolumbar spine disorder Prior to February 7, 2021, DC 5242 was assigned for degenerative arthritis of the spine and DC 5243 for intervertebral disc syndrome (IVDS). As of February 7, 2021, DC 5242 is assigned for degenerative arthritis and degenerative disc disease (DDD) other than IVDS. It also amended DC 5243 for IVDS, allowing the DC to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; otherwise DC 5242 must be used for all other disc diagnoses. Although the amended criteria for 5242 and 5243 separated DDD from IVDS, the rating criteria under each DC was unchanged. DC 5243 instructs to evaluate IVDS either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, DC 5243. Under DC 5243 for 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 spina contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. There are also several relevant note provisions associated with DC 5243. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate DC. Note (2): (See also Plate V.) 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. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in an individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Id. Recently the Court issued a decision in Chavis v. McDonough, No. 18-2928 (April 16, 2021), and found that when evaluating a disability under VA's General Rating Formula for Diseases and Injuries of the Spine, the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosisi.e., functional loss consistent with that contemplated by ankylosis. See also 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. §§ 4.40, 4.45 are for application when evaluating joint disabilities and their manifestations, which may include ankylosis. These sections direct adjudicators to determine whether the joint demonstrates less movement than normal and ankylosis is specifically identified among the possible causes of less movement. Moreover, § 4.40 provides that "functional loss may be due to...pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion." Accordingly, the Court in Chavis found that the application of 38 C.F.R. §§ 4.40 and 4.45 permits consideration under the General Rating Formula of an evaluation based on ankylosis if a claimant's functional loss is consistent with that contemplated by ankylosis or if it is the functional equivalent of ankylosis. Under DC 5243 for the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, 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. Id. 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. Id. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. Note (1) defines an incapacitating episode as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. The Veteran's thoracolumbar spine disorder is rated 10 percent disabling from May 1, 2002 to October 28, 2012 and 20 percent disabling from October 29, 2012 and continuing thereafter under DC 5243. The appellate period is from October 29, 2012, the receipt date of the Veteran's increased rating claim. In the January 2013 VA examination, the Veteran was diagnosed with thoracolumbar spine degenerative disc disease. The Veteran reported experiencing flare-ups described as trouble with bending, squatting and driving for prolonged periods. Initial range of motion was flexion at 65 degrees, extension at 20 degrees, right lateral flexion at 30 degrees, left lateral flexion at 30 degrees, right lateral rotation at 30 degrees and left lateral rotation at 30 degrees. There was pain on motion. The Veteran performed repetitive-use testing with at least three repetitions. Post-test range of motion was flexion at 65 degrees, extension at 20 degrees, right lateral flexion at 30 degrees, left lateral flexion at 30 degrees, right lateral rotation at 30 degrees and left lateral rotation at 30 degrees. The Veteran's functional loss resulted from less movement than normal and pain on movement. The examiner noted mild lower lumbosacral tenderness. There was no guarding, muscle spasms, muscle atrophy, radiculopathy, neurological abnormalities, or other pertinent physical findings. Muscle strength, reflex and sensory testing revealed normal findings. The examiner noted intervertebral disc syndrome but there were no incapacitating episodes over the past 12 months. The Veteran occasionally used a lumbar brace. In a January 2013 VA treatment record, the Veteran reported experiencing low back pain and denied bowel or bladder incontinence. A November 2013 VA treatment record reflects the Veteran's report of experiencing low back pain and having denied experiencing urinary trouble. A physical examination revealed thoracolumbar spine mild tenderness and muscle spasms. A May 2015 VA treatment record reflects the Veteran's report of experiencing low back pain and a physical examination revealed tenderness to palpation. In a July 2015 VA treatment record, the Veteran reported experiencing low back pain. A physical examination revealed lumbar spine non-tenderness and limited range of motion; however, no measurements were provided. The Veteran denied experiencing bowel or bladder dysfunction. A July 2015 VA lumbar spine radiograph revealed degenerative disc disease. An August 2015 VA lumbar spine radiograph revealed mild multilevel disc disease. In the September 2015 VA examination, the Veteran was diagnosed with a lumbosacral strain and degenerative joint disease. The Veteran reported experiencing low back pain exacerbated with bending and sitting. The Veteran reported experiencing flare-ups manifested as low back pain and denied experiencing functional loss. The examiner was unable to conduct initial range of motion testing because the Veteran was then-undergoing pain due to flare-ups. There was no pain with weight-bearing, localized tenderness, or pain on palpation. The examiner was unable to conduct repetitive-use testing due to the Veteran's pain from flare-ups but the examination was medically consistent with the Veteran's statements describing functional loss with repetitive-use over time. The examiner was unable to say, without mere speculation, whether any pain, weakness, fatigability, or incoordination significantly limited functional ability with repetitive use because the Veteran was unable to perform testing due to low back pain from flare-ups. The examination was conducted during a flare-up. Pain and fatigue significantly limited functional ability with flare-ups. Range of motion testing revealed flexion at 60 degrees, extension at 15 degrees, right lateral flexion at 20 degrees, left lateral flexion at 20 degrees, right lateral rotation at 20 degrees and left lateral rotation at 20 degrees. There was no guarding, muscle spasms, spine ankylosis, other neurological abnormalities, other pertinent physical findings, or scars. Muscle strength, reflex and sensory testing revealed normal findings. The examiner noted no incapacitating episodes in the past 12 months. The Veteran did not use assistive devices. A November 2015 VA lumbar spine radiograph revealed mild degenerative sclerosis of the left sacroiliac joint. A June 2016 VA treatment record reflects the Veteran's report of experiencing low back pain and a VA lumbar spine radiograph revealed degenerative change. An August 2016 VA treatment record reflects the Veteran's report of experiencing left-sided lumbar spine pain. In his August 2017 Board hearing, the Veteran testified to not having undergone physical therapy, surgery, or then-currently prescribed bed rest. The Veteran treated with acupuncture and medication. The Veteran testified to experiencing trouble with daily chores, sitting, driving and bending. In the October 2019 VA examination, the Veteran was diagnosed with intervertebral disc syndrome. The Veteran reported experiencing daily low back pain exacerbated by prolonged sitting and standing. The Veteran reported experiencing daily moderate to severe flare-ups lasting approximately three hours. His flare-ups were precipitated by prolonged sitting and repeated bending. The Veteran reported experiencing functional impairment described as trouble with lifting, prolonged standing and sitting. Initial range of motion testing revealed flexion at 50 degrees, extension at 15 degrees, right lateral flexion at 15 degrees, left lateral flexion at 15 degrees, right lateral rotation at 15 degrees and left lateral rotation at 15 degrees. The limitation in range of motion contributed to functional loss manifested as trouble with lifting, prolonged standing and sitting. There was painful motion that caused functional loss. There was pain with weight-bearing but no localized tenderness or pain on palpation. The Veteran performed repetitive-use testing with at least three repetitions. Pain and lack of endurance caused functional loss. Post-test range of motion testing revealed flexion at 60 degrees, extension at 15 degrees, right lateral flexion at 15 degrees, left lateral flexion at 15 degrees, right lateral rotation at 15 degrees and left lateral rotation at 15 degrees. The Veteran was examined immediately after repetitive-use testing. The examination was conducted during a flare-up. Pain and lack of endurance significantly limited functional ability with flare-ups. Range of motion testing revealed flexion at 60 degrees, extension at 15 degrees, right lateral flexion at 15 degrees, left lateral flexion at 15 degrees, right lateral rotation at 15 degrees and left lateral rotation at 15 degrees. The examiner noted no guarding, muscle spasms, or additional factors contributing to the Veteran's disorder. Muscle strength, reflex and sensory testing revealed normal findings. There was no muscle atrophy, spine ankylosis, neurological abnormalities, other pertinent physical findings, or scars. The examiner noted intervertebral disc syndrome and the Veteran reported having to undergo bed rest due to his back. The Veteran did not use assistive devices. There was pain on passive range of motion and non-weight bearing testing. A preponderance of the evidence is against a finding of an increased rating higher than 20 percent for the entirety of the rating period on appeal under DC 5243. For the entirety of the rating period on appeal, the severity of the Veteran's thoracolumbar spine disorder manifested, at worst, as 50 degrees flexion with a combined range of motion of 125 degrees and painful motion. Two VA examiners have indicated that the Veteran did not have spine ankylosis and no competent evidence has been submitted demonstrating the functional equivalent of ankylosis. The evidence does not reflect the Veteran having undergone any incapacitating episodes and the Veteran's report during the October 2019 VA examination of having to undergo bed rest due to his thoracolumbar spine does not constitute an incapacitating episode because there was no indication that the Veteran was prescribed bed rest by a physician. Therefore, an increased rating is not warranted and the claim is denied. The Veteran has not raised any other issues, nor has the record reasonably raised any other issues. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Right foot disorder The Veteran's right foot plantar fasciitis has been rated by analogy to acquired flatfoot under DC 5099-5276. 38 C.F.R. § 4.71a. Under DC 5276, a 20 percent rating is warranted for severe unilateral flatfoot manifested by objective evidence of marked deformity (pronation, abduction, etc), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. 38 C.F.R. § 4.71a, DC 5276. A 30 percent rating is warranted for pronounced unilateral flatfoot manifested by marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. Id. The criteria in DC 5276 are conjunctive. Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all the conditions listed in the provision must be met). Compare Johnson v. Brown, 7 Vet. App. 9 (1994) (only one disjunctive "or" requirement must be met for an increased rating to be assigned). See also Tatum v. Shinseki, 23 Vet. App. 152 (2009) (holding that 38 C.F.R. § 4.7 is not applicable when the ratings criteria are successive and not variable). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. 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) (changing new diagnostic code applicable to plantar fasciitis to 5269). The Board must generally apply both the former and the revised versions of the regulation for the period prior and after the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Under the revised criteria, effective February 7, 2021, there is no change in the criteria for evaluating acquired flatfoot under DC 5276. However under the revised criteria, DC 5269 for plantar fasciitis now provides a 30 percent rating for bilateral plantar fasciitis with no relief from both non-surgical and surgical treatment. A 20 percent rating is warranted for unilateral plantar fasciitis with no relief from both non-surgical and surgical treatment. Note 1 provides that a 40 percent rating should be assigned for actual loss of use of the foot. Note 2 provides that if a veteran has been recommended for surgical intervention, but is not a surgical candidate, evaluate under the 20 or 30 percent criteria, whichever is applicable. An October 2012 VA right foot radiograph revealed no acute fracture, malalignment, significant cortical erosions, or preserved joint spaces. In the January 2013 VA examination, the Veteran was diagnosed with right foot plantar fasciitis. The Veteran reported experiencing trouble with walking and standing for prolonged periods. The examiner indicated that there was no Morton's neuroma, metatarsalgia, hammer toes, hallux valgus, hallux rigidus, pes cavus, malunion or non-union of the tarsal or metatarsal bones, other foot injuries, bilateral weak foot, or other pertinent physical findings. The Veteran did not use assistive devices. A March 2013 VA treatment record reflects the Veteran's report of experiencing right foot pain described as a burning sensation and feeling glass underneath the ball of the Veteran's right foot upon standing. A physical examination revealed medium/high arch flexion foot type, no pain on palpation and grossly intact peripheral sensorium. Custom foot orthotics were ordered. A January 2014 VA treatment record reflects the Veteran's report of experiencing right foot pain. In the March 2016 VA examination, the Veteran was diagnosed with right foot plantar fasciitis. The Veteran reported experiencing a right foot stinging and burning sensation exacerbated with weight-bearing. The Veteran's right foot pain increased during the day and there was discomfort in the arch but none in the heel. The Veteran treated his right foot disorder with custom orthotics and prescription medication. The Veteran did not report experiencing flare-ups. The Veteran reported experiencing functional loss manifested as trouble with raking leaves, cutting down trees and trouble with standing. The examiner noted pain on use and pain accentuated on use. There was no pain on manipulation, swelling on use, or characteristic calluses. The Veteran tried orthotics but remained symptomatic. There was no extreme tenderness of the plantar surface, decreased longitudinal arch height on weight-bearing, marked deformity, or marked pronation. The examiner noted that the weight-bearing line did not fall over or medial to the great toe. There was no lower extremity deformity, other than pes planus, that caused alteration of the weight-bearing line. The examiner indicated that there was no inward bowing of the achillis tendon, marked inward displacement, or severe spasm of the achillis tendon. There were no other foot injuries and the Veteran had not undergone foot surgery. The Veteran's right foot pain contributed to functional loss. Pain on weight-bearing and interference with standing contributed to the Veteran's right foot disorder. The Veteran's limitation in weight-bearing significantly limited functional ability during flare-ups or when repeatedly used over time. There was discomfort with palpation of the plantar metatarsal head and decreased vibratory sensation at the great toe interphalangeal joint. There were no scars and the Veteran did not use assistive devices. A June 2016 VA treatment record reflects the Veteran's report of experiencing right foot pain and a diagnosis of pes planus. A physical examination revealed tenderness on the bottom of the Veteran's right foot. In his August 2017 Board hearing, the Veteran testified to having worn shoe inserts and orthotics. The Veteran indicated having no right deformity and that he experienced trouble with walking, balance, pain, swelling and callouses. In the October 2019 VA examination, the Veteran was diagnosed with right foot plantar fasciitis. The Veteran reported experiencing daily right foot pain and treating with foot inserts, ice and prescription medication. The Veteran reported experiencing flare-ups described as pain from walking on uneven surfaces. The Veteran reported experiencing functional loss manifested as trouble with lifting, prolonged standing and sitting. The examiner noted right foot pain on use, pain on manipulation, swelling on use and characteristic callouses. Arch supports provided relief. There was extreme tenderness of the plantar surface and decreased longitudinal arch height on weight-bearing. The examiner indicated that there was no marked deformity, marked pronation and the weight-bearing line did not fall over or medial to the great toe. There was no inward bowing of the achillis tendon, marked inward displacement, or severe spasm of the achillis tendon. The examiner noted no lower extremity deformity, other than pes planus, that caused alteration of the weight-bearing line. The Veteran did not undergo right foot surgery. A physical examination revealed right foot pain that contributed to functional loss. Less movement than normal, pain on weight-bearing and interference with standing contributed to the Veteran's right foot disorder. The Veteran's right foot pain significantly limited functional ability during flare-ups or when used repeatedly over time. There were no other pertinent physical findings or scars. The Veteran did not use assistive devices. A preponderance of the evidence is against a finding of an increased rating higher than 20 percent for the right foot disorder under DC 5276. For the entirety of the rating period on appeal, the severity of the Veteran's right foot disorder manifested as pain on manipulation, use accentuated, swelling on use, characteristic callosities and not improved by orthopedic shoes or appliances. Two VA examiners indicated that the Veteran did not have right foot marked pronation, extreme tenderness of plantar surfaces of the foot, marked inward displacement, or severe spasm of the tendo achillis on manipulation. To the extent that the Veteran experienced no relief of his plantar fasciitis from non-surgical treatment, he is in receipt of the maximum rating assigned for unilateral plantar fasciitis. He does not have bilateral plantar fasciitis; therefore, a rating in excess of 20 percent is not warranted under the revised criteria effective February 7, 2021. For these reasons, an increased rating is not warranted and the claim is denied. The Veteran has not raised any other issues, nor has the record reasonably raised any other issues. See Doucette v. Shulkin, 28 Vet. App. at 69-70 (2017). G. Jackson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Cohen, 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.