Citation Nr: 22012188 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 16-09 633 DATE: March 2, 2022 ORDER Entitlement to a rating in excess of 20 percent for compression deformity of the lumbar spine, with moderate degenerative spondylosis prior to April 27, 2021 is denied. Entitlement to a rating of 40 percent, but no higher, for compression deformity of the lumbar spine, with moderate degenerative spondylosis from April 27, 2021 is granted. FINDINGS OF FACT 1. Prior to April 27, 2021, the Veteran's low back disorder was manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. 2. From April 27, 2021, the Veteran's low back disorder was manifested by forward flexion of the thoracolumbar spine 30 degrees or less. CONCLUSIONS OF LAW 1. Prior to April 27, 2021, the criteria for a disability rating of 20 percent for low back disorder are met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2017). 2. From April 27, 2021, the criteria for a disability rating 40 percent for low back disorder are met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army on active duty from June 1993 to May 1997, from September 1999 to October 2002, from November 2002 to October 2003, from October 2003 to May 2011, from June 2011 to January 2012, and from January 2012 to March 2012. These issues come before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified ata hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is included in the record and has been reviewed. In April 2021 and November 2021, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to compensate entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). When evaluating joint disabilities rated on the basis of limitation of motion, 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. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). The 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. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Court in Mitchell 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, 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. See 38 C.F.R. §§ 4.40, 4.45 (2017). 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. Increased Rating Back The Veteran contends he is entitled to an increased rating for his back condition. The Veteran's back condition is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code DC 5237. DC 5237 applies to lumbosacral strain, which permits rating either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. 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. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. 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. Unfavorable ankylosis is defined as "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." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. The Veteran testified at a Board hearing in May 2021. See May 2021 Hearing Transcript. He testified that he experiences flare-ups, which involve pain and locking of the spine. On a good morning, he is able to bend to about 60 degrees with pain. His back worsens throughout the day, leaving him at the end of the day with about a 30-to-40-degree range of motion with pain. Any range of motion, even on a good day, is with pain. The Veteran testified that if a nerve gets pinched, he has a 0-degree range of motion and has to utilize a spine board to get to the chiropractor. He indicated that three visits to his chiropractor along with lying on a firm surface tends to alleviate the pain and cause his range of motion to return. The Veteran testified that his back pain and range of motion limitations have remained consistent since his 2015 examination. Additionally, the Veteran testified that his hobbies include water and snow skiing. July 15, 2015 to April 27, 2021 The Veteran attended a VA examination in August 2015. See August 2015 VA Examination. He expressed difficulty with sitting, lifting, pushing and pulling. The Veteran reported flare-ups that last several days about every three months, with improvement after visits with the chiropractor. Range of motion testing revealed flexion to 60 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, and right and left lateral rotation to 30 degrees. Repetitive use testing did not result in additional loss of function or range of motion after three repetitions and the Veteran was not examined immediately after repetitive use over time. The Veteran did not have objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine with pain noted on examination that caused functional loss for all flexion, extension and rotation. The Veteran did not exhibit pain with weight bearing. He did not display guarding or muscle spasms resulting in an abnormal gait and spinal contour. He had normal muscle strength with no muscle atrophy and normal reflexes. Straight leg testing was negative for the right leg and positive for the left. He presented with radicular pain, no ankylosis, and arthritis of the spine. Functionally, the examiner noted that the Veteran has increased pain with prolonged standing, sitting, and walking. The Veteran's medical treatment records include complaints of back pain throughout the period on appeal. In early 2015, the Veteran's records note that he received muscle stimulation from his chiropractor. In June 2019, another treatment note indicated that the Veteran has chronic low back pain without radicular symptoms. The Veteran's medical records during this period do not include any range of motion measurements. As mentioned above, the Veteran testified at his May 2021 Board hearing that his back pain and range of motion limitations have remained consistent since his 2015 examination. At his hearing, he testified that, on a good day, his range of motion is between 30 degrees and 60 degrees with pain and, on a bad day, his range of motion is zero. The Veteran testified that the examination was performed in the morning, so his range of motion was at its best. When making a decision, the Board must consider all the evidence of record, to include lay statements and assess their competency and credibility. 38 U.S.C. § § 5107(b), 7104(a); 38 C.F.R. § 3.303(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In weighing credibility, VA may consider internal inconsistency, facial plausibility, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). While the Veteran shared at his hearing that his back condition has remained the same since 2015, his reports at medical examinations indicate his condition has worsened. At his 2015 VA examination he shared that he experienced flare-ups every three months, which last several days. At his 2021 VA examination he indicated that he has flare-ups twice a month that last two days. While these do not necessarily provide the Board with range of motion measurements, it indicates to the Board that the Veteran's condition has worsened from 2015 to 2021. The Veteran consistently shared that he experienced back pain at medical appointments, unfortunately, his descriptions did not include range of motion. He did not indicate where his limitations of forward flexion were nor did he indicate forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. As such, the Board has considered the Veteran's testimony and the evidence does not provide the Board with the information to increase the Veteran's general rating based on DC 5237. Considering the medical records and contentions, for the period prior to April 27, 2021, the Veteran's symptoms most closely approximate the criteria contemplated by a 20 percent rating. The Veteran's symptoms are manifested by a forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. A rating in excess of 30 percent is not warranted as the medical evidence does not establish forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. From April 27, 2021 The Veteran attended a medical appointment on April 27, 2021. See Medical Treatment Records. The clinician noted that the Veteran's flexion was 30 degrees with pain, extension was 10 degrees with pain, left lateral flexion was 10 degrees with pain, right lateral flexion was 15 degrees with pain, left rotation was 15 degrees without pain, and right rotation was 25 degrees with pain. The Veteran had normal reflexes and pain at 60 degrees on the straight leg raise. The Veteran was afforded a VA examination in June 2021. See June 2021 VA Examination. He expressed difficulty with walking, standing, bending, lifting, and climbing. The Veteran reported flare-ups twice a month that last two days. The Veteran also reported that his back went out once rendering him unable to move and hospitalized for 3 days. Range of motion testing revealed flexion to 50 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, and right and left lateral rotation to 30 degrees. Passive range of motion was not completed, as it may cause the Veteran further distress due to back condition. Repetitive use testing resulted in flexion to 50 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, and right and left lateral rotation to 20 degrees in additional loss of function or range of motion after three repetitions and the Veteran was not examined immediately after repetitive use over time. There was evidence of pain on weight bearing, non-weight bearing, active motion, on rest, and noted that it causes functional loss with walking, standing, bending, lifting, and climbing. There was no objective evidence of crepitus or localized tenderness of pain on palpation. He did not display guarding or muscle spasms resulting in an abnormal gait and spinal contour. He had normal muscle strength on the right side and 4/5 hip flexion and knee flexion on the left side, with no muscle atrophy. The Veteran presented with normal reflexes on the right side and hypoactive reflexes on the left knee. Straight leg testing was negative for the right leg and positive for the left. He presented with radicular pain in the left lower extremity and no ankylosis. The Veteran reported occasional use of a cane. Functionally, the examiner noted that the Veteran has functional loss with walking, standing, bending, lifting, and climbing. The examiner found that the Veteran's condition had worsened, noting that the Veteran's lumbar spine was causing left lower extremity radiculopathy The Veteran submitted a private opinion from his chiropractor in August 2021. See Medical Treatment Records. While the chiropractor noted that he has treated the Veteran since March 2002, the opinion is not dated, so it is not clear to the Board the exact period of treatment. Nevertheless, he reported that the Veteran has continued complaints of low back pain, with exacerbations, due to a compression fracture of the spine and disc degeneration. Additionally, the Veteran has a mild to moderate severity which is exacerbated with exertion. A VA back (thoracolumbar spine) examination was conducted in November 2021. See November 2021 VA Examination. The examiner noted compression deformity of L2 with moderate degenerative spondylosis and diagnoses of degenerative disc disease (DDD) other than intervertebral disc syndrome (IVDS). Additionally, the Veteran was diagnosed with left lower extremity radiculopathy. The Veteran reported that his low back flare-ups are severe and occur four to six times per year and last 3 to four weeks. He also reported that he is unable to "walk straight," cannot stand fully erect, and has trouble sleeping due to trouble laying down for long periods. The examiner measured the Veteran's active range of motion for forward flexion at 70 degrees, extension at 20 degrees with pain, right lateral flexion endpoint at 10 degrees, left lateral flexion endpoint at 10 degrees with pain, and right and left lateral rotation endpoint at 30 degrees. Passive range of motion was completed and determined to be the same as active range of motion. Repetitive-use testing with at least three repetitions was completed with no additional loss of function or range of motion after three repetitions. Repeated use over time testing was not completed but the examiner estimated range of motion for back forward flexion at 65 degrees with pain, extension at 10 degrees with pain, right lateral flexion endpoint at 10 degrees, left lateral flexion endpoint at 10 degrees with pain, and right and left lateral rotation endpoint at 10 degrees. The examiner was also unable to perform testing during a flare-up and estimated that the Veteran's range of motion during a flare-up was a forward flexion at 10 degrees, extension at 0 degrees, right and left lateral flexion endpoint at 10 degrees, and right and left lateral rotation endpoint at 10 degrees. He had normal muscle strength and no muscle atrophy, with normal reflexes. The Veteran had a negative right straight leg raising test result and a positive left straight leg raising test result. The examiner noted that pain and weakness were the factors that caused this functional loss. The examiner noted the Veteran had muscle spasms that did not result in abnormal gait and was unable to evaluate whether the Veteran exhibited guarding. The Veteran was not found to have ankylosis of the spine. He reported occasional use of a brace. Functionally, the Veteran reported that he is presently employed as a Lyft driver and that with flare-ups he is unable to sit, stand, or lay down comfortably. In rendering this opinion, the examiner considered the Veteran's reports that his mobility decreased throughout the day due to pain and his flare-up contentions. As mentioned above, the Veteran testified at his May 2021 Board hearing that his back pain and range of motion limitations have remained consistent since his 2015 examination. He further testified that on a good day his range of motion was between 30 degrees and 60 degrees. Additionally, the Veteran testified that, while he had to take the easier courses, his hobbies continued to include water and snow skiing. When making a decision, the Board must consider all the evidence of record, to include lay statements and assess their competency and credibility. 38 U.S.C. § § 5107(b), 7104(a); 38 C.F.R. § 3.303(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In weighing credibility, VA may consider internal inconsistency, facial plausibility, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). For the period from April 27, 2021, the Veteran's symptoms are manifested by a forward flexion of the thoracolumbar spine to 30 degrees or less, pain, and fatigue. The Board finds that these symptoms most closely approximate the criteria contemplated by a 40 percent rating. Notably, the Veteran contends that, while his condition limits the difficulty of the ski slopes he is able to complete, his back condition still allows him enough mobility to allow him to ski occasionally. As such, a rating in excess of 40 percent is not warranted as the medical evidence does not establish unfavorable ankylosis of the entire thoracolumbar spine, which is part of the criteria required for the 50 percent rating. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Schmidt 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.