Citation Nr: 21042612 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-19 297 DATE: July 13, 2021 ORDER Entitlement to a rating higher than 40 percent for a low back disability is denied. FINDING OF FACT The Veteran's low back disability has not been productive of ankylosis or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for low back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1979 to July 1992, from September 1998 to December 2006. This appeal is before the Board of Veterans' Appeals (Board) from a July 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Veteran testified before the undersigned Veterans Law Judge. Subsequently, the Board remanded the claim for further development, to include affording the Veteran a VA examination. In the May 2019 Board remand, the Board also took jurisdiction of the Veteran's claim for TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In an October 2019 rating decision, the RO granted TDIU effective August 2, 2016. As this represents a grant of the full benefit sought, the matter is no longer before the Board on appeal. The remaining issue has been returned to the Board for appellate review. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). In the July 2016 rating decision, the AOJ granted increased ratings for low back disability from 20 percent to 40 percent, effective November 26, 2014. Lumbar spine disabilities are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5243. The Veteran is rated under Diagnostic Code 5237 and the Board will consider all relevant diagnostic codes. Pursuant to this formula, a 20 percent disability rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasm or guarding is 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 when forward flexion of the thoracolumbar spine is 30 degrees or less; or, when there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237. Unfavorable ankylosis is a condition with which the entire thoracolumbar spine is fixed in flexion or extension, resulting in several symptoms described in Note 5 of the General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are considered part and parcel of an injury to the spine and are to be evaluated separately under the appropriate diagnostic codes. 38 C.F.R. § 4.71a, Note (1). The rating schedule also includes criteria for evaluating IVDS. Under Diagnostic Code 5237, IVDS is to be evaluated either under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on the Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under the IVDS formula, a 40 percent is warranted for incapacitating episodes with a total duration of at least four weeks but less than six weeks during the past 12 months. Id. A 60 percent is warranted for incapacitating episodes with a total duration of at least six weeks during the past 12 months. Id. For these purposes, an incapacitating episode is defined 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). Turning the evidence of record, the Veteran was afforded VA back examinations in July 2016 and October 2019. The July 2016 VA examination showed flexion limited to 30 degrees with objective evidence of painful motion, extension limited to 10 degrees, left and right lateral flexion and rotation limited to 30 degrees. There was no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Examination did not show that pain, repetitive use, weakness, flare-ups, incoordination, or fatigue would cause an additional loss of range of motion in the thoracolumbar spine. The October 2019 VA examination showed flexion limited to 35 degrees, extension limited to 20 degrees, left and right lateral flexion limited to 20 degrees, left lateral rotation limited to 15 degrees and right lateral rotation limited to 10 degrees. All ranges or motion testing showed objective evidence of pain. The Board notes that the October 2019 VA examination indicated that the Veteran had IVDS and noted that the Veteran had one episode of acute signs and symptoms due to IVDS that required one week of bed rest prescribed by a physician in the past 12 months. However, the Board finds that the Veteran's IVDS symptoms do not meet or more nearly approximate the criteria for a rating in excess of 40 percent. In this regard, under the rating criteria for IVDS, the next higher 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Although the October 2019 VA examination diagnosed the Veteran with IVDS, the Veteran did not have incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. The Board has also considered the Veteran's lay statements that his disability is worse, to include his May 2019 hearing testimony that on a 1-10 scale, he has constant back pain at level 2 that exacerbates to a level 5 or 7 after walking, standing and sitting for an extended period of time. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, Layno v. Brown, 6 Vet. App. 465, 470 (1994), he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's low back disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiners have the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the VA examination reports great probative value. As such, these records support the 40 percent rating, but no higher for the entire period on appeal. Consideration has been given to assigning staged ratings. However, at no time during the periods in question has the disability warranted higher schedular ratings than those assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hemphill 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.