Citation Nr: 21042085 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 16-59 472 DATE: July 12, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for a back disability prior to November 23, 2015 and in excess of 20 percent thereafter is denied. FINDINGS OF FACT 1. Prior to November 23, 2015, the Veteran's service-connected back condition was not manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or by muscle spasm or guarding severe enough to result in an abnormal gain or abnormal spinal contour. 2. After November 23, 2015, excluding a period of temporary total evaluation, the Veteran's service-connected back condition has not been manifested by forward flexion of the thoracolumbar spine to 30 degrees or less; or manifested by favorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes having a total duration of at least four weeks but less than six weeks during the prior 12 months. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent prior to November 23, 2015 and in excess of 20 percent thereafter for a service-connected back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.71a, DC 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2012 to May 2013. This matter was previously before the Board in November 2019, at which time it was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) for further development. The RO most recently readjudicated the appeal in an October 2020 supplemental statement of the case. The Board finds that VA has substantially complied with the November 2019 Board remand. Increased Rating 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. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The assignment of a particular diagnostic code to evaluate a disability is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. 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). 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. Entitlement to an initial disability rating in excess of 10 percent for a back disability prior to November 23, 2015 and in excess of 20 percent thereafter The Veteran contends that her back disability warrants a higher rating that the currently assigned 10 percent rating prior to November 23, 2015 and 20 percent thereafter, with the exception of a temporary total 100 percent disability from December 30, 2015 through March 1, 2016. The Veteran's back disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242 for degenerative disc disease of the lumbar spine. As of February 7, 2021, the Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, was amended. Diagnostic Code 5242 has been amended to include degenerative arthritis and degenerative disc disease other than intervertebral disc syndrome. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5242). 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, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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 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. 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. Id. 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. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." See 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. Turning first to the period prior to November 23, 2015, the Board notes that the Veteran is in receipt of a 10 percent disability rating effective April 27, 2015, the date VA received her claim. The November 23, 2015 rating decision assigned the minimum 10 percent disability rating based on painful motion of the thoracolumbar spine. Based on a review of the available evidence, the Board finds that a rating in excess of 10 percent is not warranted from April 27, 2015 to November 23, 2015. Specifically, there is no evidence that shows that the Veteran's thoracolumbar spine disability manifested by forward flexion greater than 30 degrees but not greater than 60 degrees; a combined range of motion of 120 degrees or less; or muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. In fact, range of motion measurements at a November 6, 2015 VA examination showed flexion to 90 degrees and full extension, lateral flexion, and lateral extension. Additionally, an alternative rating under the IVDS Formula is not warranted as the Veteran did not exhibit IVDS or any incapacitating episodes during the relevant period. Turning to the Veteran's claim for entitlement to a disability rating in excess of 20 percent for her service-connected back disability, an August 2019 rating decision increased the Veteran's disability rating to 20 percent effective November 23, 2015. Following the November 2019 Board remand, the Veteran was afforded a VA examination of her back in September 2020. The examiner saw the Veteran in person, reviewed her file, and noted the Veteran had degenerative arthritis of her spine and intervertebral disc syndrome. The examiner found the Veteran's forward flexion was to 50 degrees, extension to 20 degrees, lateral flexion to 15 degrees and lateral rotation to 5 degrees. The Veteran reported flare-ups, however there was no additional range of motion loss during flareups. There was objective evidence of localized tenderness and pain and evidence of pain with weight bearing. The examiner reported the Veteran did have guarding or muscle spasm resulting in abnormal gait or abnormal spinal contour. The examiner found the Veteran had no ankylosis in her spine. The examiner further found that the Veteran does have IVDS of the thoracolumbar spine but that the Veteran has not had any episodes of acute signs of symptoms that required bed rest prescribed by a physician in the prior 12 months. Earlier, in April 2020, the Veteran was afforded another VA back examination. The Board finds the April 2020 examination to be inadequate because the examiner indicated they could not say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability during a flare up or with repeated use over a period of time. Nevertheless, the Board notes that the April 2020 examiner also found no ankylosis of the spine or forward flexion of 30 degrees or less, or that the Veteran had any episodes of acute signs of symptoms that required bed rest prescribed by a physician in the prior 12 months. The Board notes that none of the available medical evidence revealed forward flexion of less than 30 degrees or ankylosis of the spine, as is warranted for a 40 percent rating. Rather, the Board finds that the medical evidence of record is consistent with a 20 percent disability rating, not a rating in excess of 20 percent. The Board acknowledges the Veteran's statements that her back conditions cause her pain, limit her mobility, and create discomfort. However, while the Veteran is competent to report her symptoms of her disabilities, she is not competent to opine on matters requiring medical knowledge, such as determining the severity of her medical conditions based on the criteria above. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board places more probative weight on the medical evidence of record. It is important for the Veteran to understand that a 20 percent rating (including a 70 percent combined rating) will cause her many problems. Because the preponderance of the evidence is against the claim, the benefit of the doubt provisions does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. Accordingly, an initial disability rating in excess of 10 percent for a back disability prior to November 23, 2015 and in excess of 20 percent thereafter is denied. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Woehlke 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.