Citation Nr: 21042279 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 15-02 278 DATE: July 12, 2021 ORDER Entitlement to a 40 percent disability rating, but no higher, prior to September 14, 2017, for degenerative joint disease, lumbar spine (back disability) is granted. FINDING OF FACT Prior to September 14, 2017, the lumbar spine disability was manifested by limitation of motion approximating 30 degrees or less; there was no ankylosis. CONCLUSION OF LAW The criteria for entitlement to a 40 percent disability rating, but no higher, prior to September 14, 2017, for degenerative joint disease, lumbar spine have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service with the U.S. Army from August 1981 to June 2003. This case comes before the Board of Veteran's Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran had a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. In April 2019, the Board denied entitlement to a disability rating in excess of 20 percent prior to September 14, 2017. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), which in December 2019, on the basis of a Joint Motion for Partial Remand (JMPR) vacated and remanded the above issue. In May 2020, the Board remanded this decision for an addendum medical opinion. The matter is now before the Board again for further appellate review. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided in May 2013. The RO associated the Veteran's service and VA and private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. The Board notes that the September 2013 and May 2015 VA examinations were found inadequate in the December 2019 JMPR and as discussed further below the December 2020, March 2021, and April 2021 addendum opinions were not compliant with the May 2020 remand instructions. However, the Board finds that at this time, remanding the claim for another retrospective opinion would be futile. To remand the claim back and such a delay is outweighed by giving the Veteran a timely decision on his claim. Further, the September 2017 examination is adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes). IVDS (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. The Formula for Rating IVDS based on Incapacitating Episodes provides for a 60 percent rating when there are incapacitating episodes of IVDS having a total duration of at least six weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least two weeks, but less than four weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. The evidence of record does not show that the Veteran has requiring bed rest during any period on appeal. As required bed rest is a fundamental element for an evaluation under this section of the rating schedule, the absence of any prescribed bed rest precludes a rating under the IVDS criteria. Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula for Diseases and Injuries of the Spine provides a 20 percent rating 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 assigned where forward flexion of the thoracolumbar spine is to 30 degrees or less, or if there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, while a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. General Rating Formula. Additionally, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under the appropriate diagnostic codes. 38 C.F.R. § 4.71a, Code 5243. 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. In evaluating any disability on the basis of limitation of motion, VA must consider the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). VA and private treatment records document that the Veteran has chronic low back pain. In September 2013, the Veteran was afforded a VA examination. The Veteran reported that his condition was worse. He indicated that his back was very stiff, and it was painful to bend. His flare-ups were described as pain when walking. He was not able to be in a vehicle for a prolonged period. Functional loss was noted with regard to pain on movement, manifesting in difficulty walking and bending. No guarding or muscle spasm, additional factors contributing to the disability, or muscle atrophy were noted. Range of motion (ROM) testing reflected forward flexion to 80 degrees with pain, extension to 30 degrees with pain, right and left lateral rotation to 25 degrees with pain, and right and left lateral flexion to 25 degrees with pain. In May 2015, the Veteran was afforded a VA examination. The Veteran reported that it was painful when he sat and stood. He indicated that he had trouble getting out of bed in the morning. He noted that his back would hurt during sex and he had limited movement. During his flare-ups it caused him to shut down and he was not able to move. He had a functional loss described as less movement than normal, weakened movement, excess fatigability, pain on movement, and interference with sitting, standing, and/or weight-bearing. ROM testing reflected forward flexion to 65 degrees with pain, extension to 25 degrees with pain, right and left lateral rotation to 20 degrees with pain, and right flexion and left lateral flexion to 25 degrees with pain. He had a moderate tenderness to palpation of the spine. He did not have muscle spasm, guarding, or muscle atrophy. The examiner noted that, during flare-ups, an additional 5 degrees in flexion could be estimated. He did not have IVDS of the spine. There was no ankylosis of the spine. In September 2017, the Veteran was afforded a VA examination. He reported that he had limited activity due to back pain. He had shooting pain and dull pain in his back. He noted that he had stiffness and persistent pain. He rated his pain at a 9 at its worst. He noted that his pain was normally ranged from 6 to 7 with medication. He reported that his flare-ups were severe and lasted 1 to 2 hours. He described a functional loss as not being able to squat or do physical exercise. He was not able to carry heavy objects or anything weighing more than 25 pounds. The Veteran had to walk up the stairs sideways. He reported that it was difficult for him to tie his shoes due to limitation and painful flexion. The Veteran was not able to walk more than a quarter mile. ROM testing reflected forward flexion to 50 degrees with pain, extension to 15 degrees, right and left lateral rotation to 15 degrees with pain, and right flexion to 15 degrees with pain, and left lateral flexion to 25 degrees with pain. He did not have muscle atrophy or guarding. He had muscle spasm that did not result in abnormal gait or abnormal spinal contour. He did not have IVDS of the spine. There was no ankylosis of the spine. In December 2019, the Court found the Board erred when it relied on the September 2013 and May 2015 VA examinations. The September 2013 VA examination did not specify to what degree additional range of motion (ROM) loss was due to pain on use or during flare-ups according to Mitchell, nor did it uphold the obligations placed upon the examiner by Jones because it did not indicate the inability to estimate the Veteran's ROM was a reflection shared by the medical community at large. Mitchell, 25 Vet. App. at 43-44; Jones, 23 Vet. App. at 390. The May 2015 examiner failed to estimate, in terms of ROM, the amount of functional loss that the Veteran experienced after repeated use over time. The Court found that the examination failed to provide clear estimations and opinions pertaining to each of the requirements discussed in Sharp. Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). Therefore, the Court found the medical opinions inadequate. In May 2020, the Board remanded this claim for a retrospective medical opinion. The examiner was asked to clarify why the limitation due to flare-ups of the lumbar spine could not be determined for the Veteran and provide an estimate, in terms of ROM, the amount of functional loss that the Veteran experienced after repeated use over time. In December 2020, March 2021 (twice), and April 2021 addendum opinions were obtained from the same contract clinician, a nurse practitioner. Repeatedly, the clinician did not provide an opinion addressing ROM or the limitation due to flare-ups. Essentially, she cited prior findings and indicated that if the prior examiners had not included information, she was not able to opine. The Board cannot rely on these inadequate opinions. However, remanding the claim for another retrospective opinion would likely be futile given the prior repeated failures and the reason for the failures. The Board must therefore rely on the evidence of record, resolving all doubt in favor of the Veteran in determining the actual degree of functional impairment prior to September 14, 2017. This consists primarily of the Veteran's reported symptoms from the September 2013 and May 2015 VA examination reports. Prior to September 2014, the Board finds that a 40 percent rating is warranted for the Veteran's back disability, as his symptoms have most closely approximated a limitation of forward flexion to less than 30 degrees. In September 2013, he reported that his back was very stiff, and it was painful to bend. His flare-ups were described as pain when walking. In May 2015, he indicated that his flare-ups caused him to shut down and he was not able to move. He had a functional loss described as less movement than normal, weakened movement, excess fatigability, pain on movement, and interference with sitting, standing, and/or weight-bearing. In September 2017, he reported that it was difficult for him to tie his shoes due to limitation and painful flexion. He indicated that he was not able to squat or do physical exercise. Accounting for the Veteran's statements describing his flare-ups, and resolving doubt in his favor, his symptoms more closely approximate limitation of flexion to 30 degrees or less, warranting a rating of 40 percent prior to September 14, 2017. The Veteran's symptoms do not more closely approximate unfavorable ankyloses of his entire thoracolumbar spine or favorable ankylosis of the entire spine required for the 50 percent and 100 percent ratings, respectively. Although at times, the Veteran is unable to bend over and cannot tie his shoes, he is able to still able to move. The September 2013, May 2015, and September 2017 examiners documented no ankylosis. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Baxter 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.