Citation Nr: 21041737 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 17-26 671 DATE: July 10, 2021 ORDER Entitlement to a rating in excess of 20 percent prior to April 27, 2015 (excluding a period of temporary total evaluation from March 28, 2013 to May 31, 2013) and in excess of 40 percent, thereafter, for degenerative arthritis of the lumbar spine with surgical scar is denied. REMANDED Entitlement to a rating in excess of 30 percent prior to January 18, 2017 and in excess of 50 percent, thereafter, for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. For the appeal period prior to April 27, 2015, the Veteran's lumbar spine degenerative disc disease manifested by no worse than forward flexion of the thoracolumbar spine to 50 degrees. 2. For the appeal period from April 27, 2015, the Veteran's lumbar spine degenerative disc disease was not manifested by ankylosis of the thoracolumbar or entire spine. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 20 percent for lumbar spine degenerative disc disease prior to April 27, 2015 (excluding a period of temporary total evaluation for back surgery from March 28, 2013 to May 31, 2013) are not met. 38 U.S.C. §§ 1155, 5107, 38 C.F.R. §§ 4.1 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 2. The criteria for an increased rating in excess of 40 percent for lumbar spine degenerative disc disease, from April 27, 2015 are not met. 38 U.S.C. §§ 1155, 5107, 38 C.F.R. §§ 4.1 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the Air Force from March 2002 to July 2006. The issues are on appeal from an August 2012 rating decision. In a May 2019 decision, the Board of Veterans' Appeals (Board) granted an increased rating of 20 percent, but no higher, for the period prior to March 28, 2013 and from June 1, 2013 to April 26, 2015. The Board denied a rating in excess of 40 percent for the back disability from April 27, 2015. The Veteran appealed the May 2019 Board decision to the Court of Appeals for Veterans Claims (Court). The regional office (RO) granted an increased rating in an August 2019 rating decision for the lumbar spine arthritis. The RO assigned a disability evaluation of 20 percent from January 18, 2012 and following a period of convalescence from June 1, 2013. In April 2020, the Court granted a Joint Motion for Partial Remand (JMPR). A subsequent Board remand was issued in October 2020 following Court remand directives. In a July 2020 rating decision, the RO granted an increased rating of 50 percent, effective January 18, 2017, for the service-connected PTSD. Generally, because a claim for an increased rating will be presumed to be for the maximum available benefit allowed by law, a claim remains in controversy when less than the maximum available benefit has been awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, the claims for an increased rating remain before the Board. In March 2021, the RO issued a supplemental statement of the case (SSOC) denying increased ratings for the Veteran's service-connected lumbar arthritis. Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 - 127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). It should also be noted that, 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 decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. The intent of the rating schedule is to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. Entitlement to increased ratings for lumbar spine degenerative disc disease The Veteran generally seeks increased ratings for his lumbar spine degenerative disc disease (lumbar spine arthritis) and asserts that his current ratings do not reflect the severity of his condition. As this increased ratings claim was received by VA in January 2012, the appeal period begins January 2011 to include the one-year look back period. His lumbar spine arthritis is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. The Board notes that the rating criteria for musculoskeletal disorders were revised on February 7, 2021. The amended regulations became effective on February 7, 2021 and claims that were pending on this date must be considered under the former and revised criteria with the most favorable version applied to the claim. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5242, 5243). However, the general rating criteria for diseases and injuries of the spine and the formula for rating intervertebral disc syndrome based on incapacitating episodes remains unchanged under the new rating criteria. Lumbar spine disabilities are governed by and rated under Diagnostic Codes 5235 to 5242. Under Diagnostic Code 5242, a rating of 20 percent is warranted with forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, severe enough muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, Diagnostic Code 5242. A rating of 40 percent is warranted with 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. Id. A higher rating of 50 percent is warranted with unfavorable ankylosis of the entire thoracolumbar spine. Id. A maximum rating of 100 percent is warranted with unfavorable ankylosis of the entire spine. Id. For VA purposes, unfavorable ankylosis is a condition in which 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. 38 C.F.R. § 4.71a, Diagnostic Code 5242, Note (5). Period prior to April 27, 2015 For the appeal period prior to April 27, 2015, excluding a period of temporary total evaluation due to back surgery from March 28, 2013 to May 31, 2013, the Veteran's lumbar spine arthritis is rated at 20 percent disabling. Initially, the Board notes that the Court deemed the August 2012 and April 2015 VA examinations conducted of the Veteran's back as insufficient because they did not satisfy Correia nor Sharp requirements. Therefore, the Board will not discuss these VA examinations in its analysis below. Turning to the evidence, VA and private medical records demonstrate that the Veteran suffered from back pain, range of motion impairment, and functional loss due to his lumbar spine arthritis. Physical activity such as working in his yard or twisting movements aggravated his back pain. Treatment for relief included steroid injections, physical therapy, medication, and resting. Private treatment records during this appeal period showed active range of motion. The Veteran's forward flexion measured to 75 degrees, extension to 25 degrees, right lateral flexion to 25 degrees, and left lateral flexion to 25 degrees. Tenderness was found off the midline and posteriorly at L-5. In a February 2015 VA consult, forward flexion measured to 50 degrees, extension to 10 degrees, lateral flexion to 20 degrees, rotation on the right to 40 degrees, and rotation on the left to 35 degrees. Based on the evidence, a rating in excess of 20 percent for the period prior to April 27, 2015 is not warranted. At worst, the Veteran's forward flexion measured to 50 degrees. Additional issues with the back such as ankylosis was never noted by a VA or private physician. To review, a rating of 40 percent is warranted with 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. As the preponderance of the evidence reflects the symptoms of the Veteran's lumbar spine arthritis do not more nearly approximate the criteria for a rating higher than 20 percent for the appeal period prior to April 27, 2015 (excluding a period of temporary total evaluation due to back surgery from March 28, 2013 to May 31, 2013), the benefit of the doubt doctrine is not otherwise for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Period from April 27, 2015 The Veteran's lumbar spine arthritis is rated at 40 percent disabling for the appeal period from April 27, 2015. Turning to the evidence, VA treatment records reveal the Veteran's lumbar spine arthritis caused limitation in range of motion, muscle weakness, and pain. The Veteran was afforded a VA examination in March 2021. The examiner continued the diagnosis of degenerative arthritis of the spine with surgical scar and bilateral lower extremity radiculopathy. The Veteran complained of worsening low back pain, describing it as a burning pain. He used over-the-counter analgesics for his low back pain as well as hot and cold compresses. The Veteran denied experiencing flare-ups. Due to the pain in his low back, he stated that he could not sit, stand, or walk for any length of time. Upon range of motion testing, forward flexion measured to 20 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 15 degrees. The abnormal range of motion contributed to functional loss because there was pain with all maneuvers, and pain while sitting, standing, and walking. Pain was also found with weightbearing. Palpation of the L5-S1 area of the low back limited range of motion and movement was observed. Mild radiculopathy involving the sciatic nerve in the bilateral lower extremities was noted. Upon testing, the examiner found moderate constant pain in the bilateral lower extremities, mild paresthesias and/or dysesthesias in the right lower extremity and moderate paresthesias and/or dysesthesias in the left lower extremity, and mild numbness in the bilateral lower extremities. The Veteran was found incapable of performing repetitive-use testing because of fear of pain. However, the examiner noted that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. Pain, fatigue, weakness, lack of endurance, and incoordination were all factors that contributed to functional loss. Described in range of motion terms, forward flexion measured to 15 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 10 degrees. Additional factors contributing to the back disability, ankylosis, muscle atrophy, and intervertebral disc syndrome (IVDS) were not found and full muscle strength was observed. In June 2021, the Veteran was afforded his most recent VA examination. The examiner expanded the Veteran's back related diagnoses he was diagnosed with IVDS, chronic low back pain associated with L4-5 disc disease, and lumbar radiculopathy. The Veteran stated that he stopped taking medication for his back pain as they proved ineffective. Rather, he rested; used CBD oil, Bio-freeze, and heating pads; and stretched. The Veteran confirmed experiencing flare-ups at least four to five times a month, manifested as sharp and shooting pain. He also explained that he was never relieved from back pain but that it was constant. Functionally, he was impacted as he had to alternate his position every few minutes to cope with the back pain, which limited his work progress, and during a flare-up, he called out sick from work. The latter hindered his productivity. Upon range of motion testing, forward flexion ended at 25 degrees, extension at 20 degrees, right lateral flexion at 25 degrees, left lateral flexion at 25 degrees, right lateral rotation at 25 degrees, and left lateral rotation at 25 degrees. Pain was exhibited with each maneuver. Passive range of motion was found to be the same as active range of motion measurements. Pain was found with weightbearing, non-weightbearing, active motion, passive motion, and on rest/non-movement. The Veteran was unable to perform repetitive use testing with at least three repetitions out of fear of pain. Although the Veteran was not being examined immediately after repeated use over time or during a flare-up, his statements suggested that he experienced pain, fatigability, and lack of endurance with repeated use over time and during a flare-up. Estimated range of motion measurements demonstrated flexion ending at 25 degrees, extension at 20 degrees, right lateral flexion at 25 degrees, left lateral flexion at 25 degrees, right lateral rotation at 25 degrees at 25 degrees, and left lateral rotation at 25 degrees. Tenderness on the lumbar spine and muscle spasm were also noted but neither resulted in abnormal gait or abnormal spinal contour. Radiculopathy of the bilateral lower extremities, involving the femoral nerve, was also found to cause mild intermittent pain (usually dull), paresthesias and/or dysesthesias, and numbness. The Veteran had no other signs or symptoms of radiculopathy. Evidence of crepitus, muscle atrophy, ankylosis, or additional factors contributing to disability were not observed. The Veteran demonstrated full muscle strength. Notably, the examiner stated that the Veteran had IVDS of the spine but noted that the Veteran did not have episodes of acute signs and symptoms due to IVDS which required bed rest prescribed by a physician and treatment by a physician in the past 12 months. Based on the evidence, the Board finds that a rating in excess of 40 percent is not warranted for the appeal period from April 27, 2015. To review, for a higher disability rating of 50 or 100 percent, the service-connected lumbar arthritis manifested as ankylosis of the thoracolumbar spine or the entire spine, respectively. At no point during this appeal period was the Veteran found to have any ankylosis of the thoracolumbar or entire spine. The Board has considered whether a separation evaluation should be awarded for any neurological manifestations present during this appeal period. The Board notes that radiculopathy involving bilateral lower extremity radiculopathy was noted in the March 2021 and June 2021 VA examinations. However, a March 2021 rating decision granted entitlement to service connection for left and right lower extremity radiculopathy at 20 percent disabling, effective March 1, 2021. The Board notes that the disability ratings for these disabilities are not before it at this time. In addition, the March 2021 and June 2021 VA examiners found that the Veteran did not have any other neurologic abnormalities or findings related to the thoracolumbar spine disability. Thus, no other separate disability rating on this basis is warranted. The Board also acknowledges the June 2020 examiner's new diagnosis of IVDS. However, the evidence does not show that the Veteran has had any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. As such, a higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is not warranted under either the old or revised Diagnostic Code 5243. There is also no evidence to suggest that the Veteran has been found to have paraplegia or quadriplegia to warrant a rating under the newly added Diagnostic Code 5244. As the preponderance of the evidence reflects the symptoms of the Veteran's lumbar spine arthritis do not more nearly approximate the criteria for a rating higher than 40 percent for the appeal period from April 27, 2015, the benefit of the doubt doctrine is not otherwise for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. REASONS FOR REMAND Entitlement to a rating in excess of 30 percent prior to January 18, 2017 and in excess of 50 percent, thereafter, for PTSD is remanded. The Veteran's service-connected PTSD was last evaluated in October 2019 and the medical evidence demonstrates that his PTSD may have worsened in severity since that date. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his service-connected PTSD. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected PTSD alone. 2. Readjudicate the appeal. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Lee 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.