Citation Nr: 21042640 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-44 793 DATE: July 13, 2021 ORDER Entitlement to an initial rating in excess of 10 percent prior to October 2, 2019 and in excess of 40 percent thereafter for lumbosacral strain with intervertebral disc syndrome (IVDS) (hereinafter, back disability), is denied. FINDINGS OF FACT 1. Prior to October 2, 2019, the Veteran's service-connected back disability is manifested by forward flexion limited to, at most, 80 degrees and a total combined range of motion of the thoracolumbar spine limited to, at most, 180 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without muscle spasm or guarding resulting in abnormal gait or abnormal spinal contour, ankylosis, or IVDS with incapacitating episodes having a total duration of at least two weeks. 2. As of October 2, 2019, the Veteran's service-connected back disability is not manifested by unfavorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. CONCLUSIONS OF LAW 1. Prior to October 2, 2019, the criteria for a rating in excess of 10 percent for the service-connected back disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5243. 2. From October 2, 2019, the criteria for the assignment of a disability rating in excess of 40 percent for the service-connected back disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1991 to April 2012. This case is before the Board of Veterans' Appeals (Board) on appeal from a December 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to an evaluation in excess of 10 percent for lumbosacral strain, and denied service connection, inter alia, for right shoulder problems. The Veteran's notice of disagreement was received in March 2016. The RO issued a statement of the case in July 2016. The Veteran's VA Form 9, substantive appeal to the Board, was received in September 2016. In December 2018 the Board remanded the case to the RO for further development and adjudicative action. While on remand, the RO issued a rating decision in June 2020 granting service connection for right shoulder strain. As such constitutes a full grant of the benefits sought on appeal with regard to such issue, it is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). The instant appeal stems from May 1, 2012, the date service connection was awarded for the Veteran's back disability. As noted, the Veteran's service-connected back disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). 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. 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, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. See Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The Veteran's back disability is evaluated under Diagnostic Code 5243, which pertains to IVDS, and provides that such disability is evaluated under either the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Rating Formula), whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The IVDS Rating Formula provides a 10 percent evaluation when there are incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months and a 20 percent evaluation when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. Ratings under the General Rating Formula 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. Such provides for a 10 percent rating where forward flexion of the thoracolumbar spine is 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 assigned where forward flexion of the thoracolumbar spine is greater than 30 degrees but no greater than 60 degrees; the combined range of motion of the thoracolumbar spine is 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. Finally, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Such criteria also include the following Notes: Note (1): Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The Board notes a code change, effective February 7, 2021, Diagnostic Code 5243 instructs assignment of a rating under its provisions only when there is disc herniation and/or irritation of the adjacent nerve root and to apply Diagnostic Code 5242 for all other disc diagnoses. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (effective February 7, 2021). The United States Supreme Court has held that statutes generally may not be construed to have retroactive effect unless their language requires that result. See Landgraf v. USI Film Products, 511 U.S. 244 (1994). As it pertains to veterans law, in Kuzma v. Principi, the Federal Circuit held that the Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the amended regulation cannot be applied prior to the effective date unless the regulation explicitly provides otherwise. In other words, the old and new regulations are for consideration with regard to rating the Veteran's disability, and he is entitled to the more favorable regulation; however, if the revised criteria are more favorable to the Veteran, the revised criteria may not be applied until the effective date of the change. 38 U.S.C. § 5110(g). Here, the amendments to the rating schedule do not have any retroactive application and would only apply to evidence received after February 7, 2021 for which none has been received. Further, there is no evidence supporting a rating under the new criteria as there is no evidence of prescribed bed rest during the appeal period. Accordingly, the old criteria will be applied for the full period on appeal. Rating Prior to October 2, 2019 The Veteran asserts the pain in his back warrants a higher rating as it is affecting his work. Specifically, in his March 2016 notice of disagreement, the Veteran asserts he had to take 16 days of work off in the last 12 months due to back pain in his lower and upper middle back. The Veteran received an initial, predischarge, March 2012 VA back examination. The Veteran reported lumbar spine stiffness/soreness, his spine "going out" with the need to pop it into place, and back pain that travels into his buttocks. He further reported having flare-ups when lifting over 25 pounds which aggravates his back and increases the pain that radiates into his gluteus muscles. When flare-ups occur, the Veteran reports laying down and bringing his knees up. Upon examination, the examiner diagnosed lumbar strain, noted flare-ups, tenderness to palpation and guarding, and observed normal range of motion which resulted in functional loss and pain on movement after repeated use. In December 2013 the Veteran was afforded a second VA back examination. The VA examiner diagnosed chronic lumbar strain. Since the previous March 2012 examination, the Veteran reported his condition had slightly worsened with pain that waxes and wanes but occurs daily, and for which he takes Tylenol twice a month. The Veteran further reported no flare-ups. During the examination the examiner observed normal range of motion and concluded the Veteran's posture and gait was within normal limits and that there are contributing factors of pain, weakness, fatigability and/or incoordination but no additional limitation of functional ability during flare-ups or repeated use over time. The Veteran underwent a third VA back examination in November 2015. The Veteran reported his condition had worsened, wherein he gets nerve pain in his upper back when overusing his back, takes motrin, and stretches daily, but has had no recent physical therapy. The Veteran further reported flare-ups and overall functional impairment affecting lifting, bending, sitting, and standing. The VA examiner diagnosed lumbosacral strain. During the examination, the examiner observed normal range of motion which was reduced by 5 degrees after repeated use and 10 degrees during flare-ups. The examiner further noted guarding and local tenderness, neither of which resulted in abnormal gait. The evidence of record is absent any VA or private treatment records. Consequently, the Board finds that the Veteran's back disability is manifested by forward flexion limited to, at most, 80 degrees and a total combined range of motion of the thoracolumbar spine limited to, at most, 180 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without muscle spasm or guarding resulting in abnormal gait or abnormal spinal contour, ankylosis, or IVDS with (doctor prescribed) incapacitating episodes having a total duration of at least two weeks. Thus, a rating in excess of 10 percent is not warranted at any time prior to October 2, 2019. Rating for Period Beginning October 2, 2019. The Veteran's representative asserts the Veteran is entitled to a rating in excess of 40 percent as of October 2, 2019. See September 2020 Appellate Brief. In October 2019 the Veteran received a fourth VA back examination. Upon examination, the examiner diagnosed lumbosacral strain and intervertebral disc syndrome. The Veteran reported constant dull back pain with radiation down his left leg with occasional back spasms lasting only a few minutes. As to flare-ups, the Veteran reported they are severe, occur daily, last a few minutes, are precipitated by bending and sitting, and alleviated by time. The Veteran further reported functional impairment with lifting objects over 20 pounds in weight. During the examination, the examiner noted abnormal range of motion which was further limited during flare-ups. Notably, upon flare-up, the Veteran's forward flexion was limited to 30 degrees. The examiner further noted radiculopathy of the left side, and IVDS but no episodes of bed rest. The evidence of record is absent any VA or private treatment records. Based on the foregoing, the Board finds that the Veteran's back disability is manifested by forward flexion limited to, 30 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, or weakness, or as a result of repetitive motion and/or flare-ups. During his last examination there was no evidence of muscle spasm or guarding resulting in abnormal gait or abnormal spinal contour, ankylosis, or incapacitating episodes. Further, the Board has considered whether the Veteran's lumbar spine disability manifests as ankylosis, particularly during flare-up. However, the evidence does not demonstrate any immobilization of his lumbar spine joints at any time during the appeal period, including during flare-ups. Accordingly, a higher rating than 40 percent is not warranted on that basis; the Veteran's claim for higher rating for the period beginning October 2, 2019, is therefore denied. See Chavis v. McDonough, 2021 U.S. App. Vet. Claims LEXIS 660, 2021 WL 1432578. In making its determinations in this case, the Board has carefully considered the Veteran's contentions with respect to the nature of his service-connected disabilities at issue and notes that his lay testimony is competent to describe certain symptoms associated with these disabilities. The Veteran's history and reported symptoms have been considered, including as presented in the medical evidence discussed above, and has been contemplated by the disability ratings that have been assigned. Moreover, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence when evaluating the pertinent symptoms of the service-connected disabilities at issue. As such, while the Board accepts the Veteran's testimony concerning matters that he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluations of functional impairment, symptom severity, and details of clinical features of the service-connected conditions at issue. In reaching the foregoing determinations, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to an initial rating in excess of 10 percent prior to October 2, 2019 and in excess of 40 percent thereafter for his service-connected back disability. Consequently, the benefit of the doubt doctrine is inapplicable in such regard, and the Veteran's claims for increased ratings must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Ardalan, 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.