Citation Nr: 21040949 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 16-19 067A DATE: July 7, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for lumbosacral strain myositis is denied. FINDING OF FACT The Veteran's lumbosacral strain myositis is manifest by forward flexion greater than 30 degrees but less than 60 degrees and a combined range of motion of the thoracolumbar spine not greater than 120 degrees. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for lumbosacral strain myositis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5021-5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1996 until her honorable discharge in May 2001. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.902(c). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision of the Regional Office of the Department of Veterans Affairs (VA). The Veteran's representative included a second issue, entitlement to service connection for left lower radiculopathy of the sciatic nerve, in their informal hearing brief. That claim was granted in an April 2021 rating decision and is not currently on appeal. In a May 2021 Statement in Support of Claim, the Veteran asserted that her right ankle disability was not examined appropriately; however, that claim is also not before the Board. In August 2019, the Veteran testified before the undersigned at a hearing via videoconference. A transcript of her testimony has been associated with the claims file. In November 2019, the Board remanded the case to the Regional Office for further development. Specifically, the Board directed the Regional Office to schedule the Veteran for a new VA examination to obtain findings addressing the severity of her lower back disability. The examination took place in April 2021. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). 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. 38 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). As the Veteran asserts that her disability causes her pain, section 4.59 will be considered. 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. Here, the most recent VA examination did not occur during a flare, but the relevant information was collected and considered by the examiner. See April 2021 VA Examination. Separate ratings may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran currently has a single rating of 20 percent effective March 29, 2006. Musculoskeletal back myositis can be found in 38 C.F.R. § 4.71a under diagnostic code 5021-5237. The relevant rating criteria are as follows: Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. [40 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. [20 percent] 38 C.F.R. § 4.71a. 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 Note 5. The Veteran's first VA examination took place in January 2015. Her forward flexion was 45 degrees and her combined range of motion was 115 degrees. Although muscle spasms, tenderness, and guarding were present, they did not result in an abnormal gait or spinal contour. These findings would only support the assignment of a 20 percent rating. Her second VA examination was in February 2017. Her forward flexion was 40 degrees and her combined range of motion was 140. Again, these findings would only support the assignment of a 20 percent rating criteria because her forward flexion is greater than 30 degrees and less than 60 degrees. The Veteran reported flare-ups at this examination and stated she had difficulty walking, sitting, or standing for long periods of time. While pain was always present, it did not cause additional functional impairment. There was no pain with weight bearing and no evidence of localized tenderness or pain on palpation of the joints or associated soft tissue. Repetitive use testing took place, but no addition loss of function or range of motion was noted after three repetitions. The examiner could not state without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time. The same was stated regarding flare-ups. The most recent examination took place in April 2021. The Veteran is not entitled to the next highest rating because the low back disability did not result in favorable ankylosis of the entire thoracolumbar spine nor forward flexion of or less than 30 degrees. In addition, while the Board acknowledges the fact that the disability results in daily pain, the weight of the evidence does not show that such causes a disability picture that approximates ankylosis of flexion limited to 30 degrees or less. 38 C.F.R. § 4.71a. The most recent range of motion testing found that she had a forward flexion of 35 degrees and a total range of motion of 85 degrees. The Board has considered rating the low back disability using the formula for rating intervertebral disc syndrome based on incapacitating episodes, however, the April 2021 examiner concluded that she did not have intervertebral disc syndrome. The Veteran's three VA examinations all showed that ankylosis was not present. Furthermore, they found that her forward flexion was never 30 degrees or less. In the most recent VA examination, the Veteran reported severe flare-ups around three times a week that caused sharp pain. However, the examiner noted that her flare-ups did not cause functional impairment, instead stating that they "prevent abrupt movement." Although this examination did not occur during a flare-up, the examiner considered the Veteran's assertions and the medical evidence regarding her flare-ups. Passive motion testing was not completed due threat of possible further injury. Her forward flexion during active range of motion testing was 35 degrees. Pain was exhibited during every stage of active range of motion testing; however, the examiner found that pain, weakness, fatigability, and incoordination did not cause further limitation of motion. As a result, the Veteran is not entitled to the next highest rating and her claim for an increased rating is denied. (Continued on the next page) In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Johnston, 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.