Citation Nr: 22011982 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 16-53 730A DATE: March 2, 2022 ORDER Entitlement to an increased rating in excess of 20 percent for a back disability is denied. FINDING OF FACT The Veteran's back disability had manifested by a limitation of motion to, at worse, 60 degrees forward flexion, with no evidence of ankylosis, or any incapacitating episodes at any point during the claim period. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for a back disability, have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from February 1980 to November 1992. Increased Rating Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 3 8 C.F.R. § 4.21. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Evaluation of a service-connected disability requires a review of a veteran's medical history with regard to that disorder. However, the primary concern in a claim for an increased evaluation for a service-connected disability is the present level of disability. While the entire recorded history of a disability is important for more accurate evaluations, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When evaluating joint disabilities rated on the basis of limitation of motion, the VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court of Appeals for Veterans Claims (Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Veteran service-connected back disability has been rated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5237. Diagnostic Code 5237 is evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Under the General Rating Formula, at 38 C.F.R. § 4.71a, a higher 30 percent rating is assigned for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned 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 assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire (thoracolumbar and cervical) spine. 38 C.F.R. § 4.71a, General Rating Formula. These ratings 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. Id. The General Rating Formula also provides further guidance in rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Id. Note (2) provides that, for VA compensation purposes, normal forward flexion of the cervical spine is 0 to 45 degrees, extension is 0 to 45 degrees, left and right lateral flexion are 0 to 45 degrees, and left and right lateral rotation are 0 to 80 degrees. Normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 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 thoracolumbar spine is 240 degrees. Note (3) provides that, 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) provides that each range of motion measurement is to be rounded to the nearest five degrees. Note (5) provides that, 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) directs to 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. Id. 1. Entitlement to an increased rating in excess of 20 percent for a back disability The Veteran claims that her current 20 percent rating for her service-connected back disability does not fully contemplate the severity of her disability during the claims period. The Board, however, finds that a close review of the relevant medical records, to include VA examinations for the back, reveal that the Veteran's back disability does not show a severe enough condition to warrant the next higher rating based on the appropriate Diagnostic Code. Therefore, as the preponderance of the evidence is against the finding of a more severe back disability the Veteran's claim for increased rating must be denied. The evidence of record includes contemporaneous VA treatment records and three separate VA examination reports from August 2013, October 2019, and December 2021. A close review of the copious amounts of VA treatment records, contemporaneous to the claims period shows no evidence that the Veteran's back disability was ever limited to 30 degrees of flexion, or less, or had any indications of ankylosis. To this end, while the Veteran was noted to suffer from both pain and flare-ups, treatment records, showed no evidence of any incapacitating episodes so severe as to require prescribed bed rest by a medical professional as due to intervertebral disc syndrome (IVDS). In August 2013, the Veteran was afforded a VA examination for her back, which assessed the nature and severity of her disability. During the examination, she reported pain and weakness, with limitation in running, but she could walk up to three miles. She noted no flare-ups. Upon physical examination, the Veteran demonstrated normal range of motion on all planes, to include 90 degrees of flexion; such range of motion remained normal upon repeat testing. Guarding and muscle spasms, along with tenderness to palpation were noted, but none that resulted in abnormal gait or spinal contour. IVDS was not noted on examination and no assistive devices was required by the Veteran. The Veteran was ultimately diagnosed with lumbar spine osteoarthritis and disc herniation. At the October 2019 VA examination, the Veteran again complained of back pain, this time, to include flare-ups, especially after prolonged use; in this regard the Veteran noted the need for a cane for ambulation. On the physical examination, the Veteran's range of motion was again noted to be normal, on all planes, with forward flexion limited to a full 90 degrees. Tenderness/pain on palpation was noted, but no pain on weight bearing. Repetitive use testing was performed, with no evidence of further decreases in the Veteran's range of motion. When considering flare-ups, however, the examiner noted a slight decrease in range of motion during flare-ups, to include limitation of flexion to 80 degrees, and a combined range of motion of 205 degrees. There was no ankylosis found on examination of the spine. While the examiner noted IVDS, no incapacitating episodes were noted in the last year; to this end, the Veteran was noted to require the regular use of a wheelchair and a cane. The Veteran was diagnosed with herniated nucleus pulposus and degenerative joint disease of the spine. At the December 2021 VA examination, the Veteran was again diagnosed with degenerative arthritis of the lumbar spine, along with spinal stenosis. The Veteran reported flare-ups that occurred 3-4 times a month, which proceeded prolonged use, to include sitting or standing for long period of time. Such flare-ups were alleviated by rest or over-the-counter pain medication. Upon physical testing, the Veteran's flexion was noted to be limited to 70 degree, with a total combined range of motion of 160 degrees. Pain on active and passive motion was noted, however, no pain tenderness/pain were noted on palpation. Repeat motion testing reveals further decreases in the Veteran's flexion to 60 degrees; however, no further decreases in range of motion were estimated during flare-ups. Neither ankylosis nor IVDS was found on examination; and no assistive devices were noted to be required for ambulation. After consideration of the pertinent evidence of record, the Board concludes that a disability rating greater than 20 percent is not warranted for the Veteran's back disability. The evidence has not demonstrated flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, to warrant a rating in excess of 20 percent. 38 C.F.R. § 4.71a, General Rating Formula. The Veteran has demonstrated forward flexion limited, at worse, 60 degrees, even considering flare-ups and pain. The Board also notes that the medical records also show no evidence that the Veteran had a diagnosis of ankylosis of any kind (favorable or unfavorable) during the relevant time period. Ankylosis is the "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing SAUNDERS ENCYCLOPEDIA AND DICTIONARY OF MEDICINE, NURSING, AND ALLIED HEALTH at 68 (4th ed. 1987)). Here, as the Veteran has been able to extend, flex, and flex and rotate laterally, the Board must find that ankylosis is not shown. Finally, consideration has been given to an increased rating for the Veteran's lumbar spine disability under other potentially applicable diagnostic codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1995). Spine conditions may also be rated under Diagnostic Code 5243 for IVDS. The criteria for IVDS rates the disability according to the number of "incapacitating episodes" suffered per year. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An "incapacitating episode" is 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. Id. at Note (1). However, the VA examiners specifically indicated that the Veteran's lumbar spine disability were not productive of any incapacitating episodes due to IDVS. 38 C.F.R. § 4.71a, General Rating Formula, Diagnostic Code 5243. The Board does acknowledge that during the October 2019 VA examination, the Veteran was noted to require the use of both a cane and wheelchair for ambulation on a regular basis. The Board, however, finds that in viewing the examination in its totality does not demonstrate that the use of such assistive devices is equivalent to ankylosis and/or "prescribed bedrest". Here, physical examination of the Veteran during that examination noted nearly normal range of motion on all planes, and even subjective reporting during the examination from the Veteran did not assert anything approaching immobility of her lumbar spine, or the inability to leave her bed. Consequently, the Board does not find that the objective evidence demonstrates a condition that can be considered akin to ankylosis, or incapacitating episodes, as contemplated by the Diagnostic Codes; and a higher rating under such criterion are also not warranted. Therefore, as the preponderance of the evidence is against the finding of objective evidence of the Veteran's back disability limited to at least 30 degrees of flexion, and/or evidence of a diagnosis of ankylosis, the Board must find that the Veteran's claim for a higher rating, must be denied. In making this determination, the Board considered any functional loss caused due to flare-ups of pain, weakness, fatigability, or incoordination. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237; DeLuca v. Brown, 8 Vet. App. 202 (1995). The evidence does not show that the spine disability more nearly approximates the criteria for a higher rating for any period on appeal. To the extent that the Veteran has reported experiencing flare-ups and functional impairment, this impairment is contemplated by the current 20 percent rating and is not of such severity that it could be characterized as flexion of 30 degrees or less or ankylosis, as is required for a higher rating. As such, a higher rating based on pain and functional loss is not warranted. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Deluca, 8 Vet. App. at 206-07. The Board concludes that, as the evidence persuasively favors against an increased rating, it is not in approximate balance, and the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ziheng Zhu, 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.