Citation Nr: 22014459 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 17-01 426 DATE: March 14, 2022 ORDER Entitlement to a disability rating in excess of 10 percent for the Veteran's service-connected lumbar condition for the period on appeal prior to May 17, 2021, and in excess of 40 percent thereafter is denied. FINDING OF FACT The Veteran's lower back disability more closely approximated the symptomatology considered for a 10 percent disability rating for the period on appeal prior to May 17, 2021, and most closely approximated the criteria for a 40 percent disability rating thereafter. CONCLUSION OF LAW The criteria for establishing entitlement to a disability rating in excess of 10 percent for the Veteran's service-connected lumbar condition for the period on appeal prior to May 17, 2021, and in excess of 40 percent, thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 5237 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from January 1994 to September 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). When this case was last before the Board in October 2021 it was remanded for additional development. Specifically, the RO was instructed to obtain an addendum medical opinion regarding the Veteran's lumbar spine condition. A relevant medical opinion was obtained. As such, the Board finds that the AOJ substantially complied with the directives in the March 2021 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased RatingLegal Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of the 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. See 38 C.F.R. § 4.7. In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. At 54). Lumbar SpineLegal Criteria Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the Veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. The Veteran's lumbar spine disability was rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. As relevant to the lumbar spine, under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or a 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. A 20 percent rating is assigned 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 requires 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 if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. There are several notes set out after the diagnostic criteria, which provide the following: First, associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateroflexion is 0 to 30 degrees, and left and right lateral rotation is 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateroflexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is to 240 degrees. Third, 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 the regulation. Fourth, each range of motion should be rounded to the nearest 5 degrees. Intervertebral disc syndrome is evaluated 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 a higher evaluation. In relevant part, the Veteran's IVDS can be rated at 20 percent disabling with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the last 12 months. A 40 percent rating with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Finally, a 60 percent rating for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For the purposes of evaluations under DC 5243 an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician. Analysis In this case, the Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran contends that he is entitled to a disability rating in excess of 10 percent disabling for his service-connected lumbosacral strain for the period prior to May 17, 2021, and in excess of 40 percent thereafter. For the reasons below, the Board finds that the Veteran is not entitled to a disability rating in excess of 10 percent for the period prior to May 17, 2021, nor in excess of 40 percent thereafter. As such, the Veteran's claim is denied. The Veteran was initially provided with a November 2015 VA Back conditions examination. The VA examiner indicated that the Veteran's range of motion was as follows: flexion to 75 degrees; extension to 10 degrees; right and left lateral flexion to 30 degrees; and right and left lateral rotation to 30 degrees. No guarding or ankylosis was reported. There was no loss of function or range of motion after 3 repetitions. The examiner noted that the Veteran did not have IVDS of the thoracolumbar spine. The Veteran experienced muscle spasms which did not result in abnormal gait or spinal contour. The Veteran reported flare-ups, however, the examiner did not provide range of motion measurements for the Veteran's spine during a flare-up. The reasoning provided was that the exam did not take place during a flare-up, and as such was inadequate under the criteria required by Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The Veteran was next provided with a July 2016 VA Back condition examination. The examiner indicated that the Veteran's range of motion was as follows: forward flexion of the thoracolumbar spine to 90 degrees; extension to 15 degrees; right and left lateral flexion to 25 degrees; and right and left rotation to 30 degrees. Further, the examiner noted that the Veteran experienced pain on all forms of movement that did not result in functional loss. No guarding, IVDS, or ankylosis was reported. The Veteran was noted as experiencing muscle spasms which did not result in abnormal gait or spinal contour. The Veteran reported flare ups, however, the examiner did not provide range of motion measurements for the Veteran's spine during a flare-up. The reasoning provided was that the exam did not take place during a flare-up, and as such was inadequate under the criteria required by Sharp 29 Vet. App. 34-36. The Veteran was then provided with a June 2018 VA Back condition examination. The examiner indicated that the Veteran's range of motion was as follows: forward flexion of the thoracolumbar spine to 70 degrees; extension to 15 degrees; right and left lateral flexion to 30 degrees; and right and left rotation to 25 degrees. Further, the examiner noted that the Veteran experienced pain on flexion, extension, and left lateral rotation that did not result in functional loss. No guarding, IVDS, or ankylosis was reported. The Veteran was noted as experiencing muscle spasms which did not result in abnormal gait or spinal contour. The Veteran reported flare ups, however, the examiner did not provide range of motion measurements for the Veteran's spine during a flare-up. The reasoning provided was that the exam did not take place during a flare-up, and as such was inadequate under the criteria required by Sharp 29 Vet. App. 34-36. The Veteran was next provided with an October 2019 VA Back condition examination. The examiner indicated that the Veteran's range of motion was, at its worst during a flare-up, as follows: forward flexion of the thoracolumbar spine to 65 degrees; extension to 15 degrees; right and left lateral flexion to 15 degrees; and right and left rotation to 15 degrees. No guarding, muscle spasms, IVDS, or ankylosis was reported. During his March 2021 Board hearing, the Veteran testified that he experiences weekly back spasms, and that when his back flares he can typically only lay in bed or on the floor. The Veteran noted that this pain can last from a full day to several days depending on the severity of the flare. In response to the Board's March 2021 remand, the Veteran was provided with a May 2021 VA Back condition examination. The examiner indicated that the Veteran's range of motion was, at its worst during a flare-up, as follows: forward flexion of the thoracolumbar spine to 10 degrees; extension to 5 degrees; right and left lateral flexion to 5 degrees; and right and left rotation to 5 degrees. Further, the examiner noted that the Veteran experienced pain on passive and active range of motion. No guarding, muscle spasms, or ankylosis was reported. The examiner did find that the Veteran had IVDS, but with no incapacitating episodes in the past 12 months. The Veteran did not have additional functional loss after 3 repetitions. The Board remanded the Veteran's claim again in October 2021 in order to obtain a medical opinion regarding whether the Veteran's lumbar spine had the functional equivalent of ankylosis. The RO obtained an October 2021 VA Addendum opinion wherein the examiner opinedfollowing a review of the relevant lay statements, medical evidence, and other relevant recordsthat the Veteran does not have a diagnosis of ankylosis or the functional equivalent of ankylosis. The rationale provided was that while a person may elect by their own volition to not move any joint when they experience pain, this does not imply that the joint is completely immobile as the anatomic structures of the joint remain capable of movement, even if the movement is not performed by the individual. The examiner supported their opinion with citations to medical literature. The Board has considered the evidence of record. The Board notes that the VA examiners are medical professionals, competent to measure motion, determine physical characteristics and deformities, and opine as to the severity of the Veteran's lumbar spine. There is no evidence that the VA examiners are not credible. Moreover, the examiners provided an analysis based upon both subjective and objective information to form an opinion based upon medical expertise. However, the Board affords the opinions of the November 2015, July 2016, and July 2018 VA examiners little weight when it comes to the range of motion experienced by the Veteran's lumbar spine, due to the inadequacies of their opinions regarding the Veteran's reported flare-ups. The Veteran's VA treatment records indicate that he sought treatment for his lower back pain. However, the treatment records do not contain information which differs significantly from the above noted VA examinations. No reports of ankylosis, incapacitating episodes of IVDS, or severe spasm/guarding are reported. Further, the Board has considered the Veteran's lay contentions and finds the lay statements are competent insofar as they report observable symptoms, such as pain. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the extent the Veteran asserts that his current disability entitles him to a higher disability rating, such statements are inconsistent with, and therefore less probative than, the objective medical evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Indeed, with regard to the actual degree of the Veteran's impairment, the objective findings contained within the VA examination reports of record are more probative because they are based on actual range of motion testing in an examination setting. This medical evidence preponderates against the notion that the Veteran's limited motion warrants higher ratings than those currently assigned. The Board has considered whether the requirement of ankylosis can be met with evidence of the functional equivalent of ankylosis (i.e. functional immobility of the joint) during a flare-up. Chavis v. McDonough, No. 18-2928, (Vet. App. Apr. 16, 2021). However, the evidence does not indicate that immobility of the spine during flare-ups. On the contrary, the Veteran did not report flare-ups at either of his VA examinations, and on all recorded assessments, the Veteran was noted to retain some range of lumbar motion. The Board finds that the requirement of ankylosis cannot be met with evidence of the functional equivalent of ankylosis in this particular case. Thus, upon careful consideration of the evidence, the Board determines that a disability rating in excess of 10 percent for the period prior to May 17, 2021, for the Veteran's lumbar spine disability is not warranted. The 10 percent rating adequately contemplates the Veteran's limitation of motion due to pain. A rating in excess of 10 percent would require forward flexion less than 60 degrees, combined range of motion of the thoracolumbar spine less than 120 degrees, muscle spasm or guarding severe enough to result in abnormal gait or spinal contour, ankylosis of the Veteran's spine, or IVDS with incapacitating episodes having a total duration of at least 2 weeks during the last 12 months. However, such severity of symptoms is not shown by the probative evidence of record prior to May 17, 2021. (Continued on the next page) Similarly, the Board finds that the Veteran is not entitled to a disability rating in excess of 40 percent for the period beginning May 17, 2021. A rating in excess of 40 percent would require unfavorable ankylosis of the entire thoracolumbar spine, or IVDS with incapacitating episodes having a total duration of 6 weeks during the last 12 months. Ankylosis of the Veteran's spine was not observed at any point during the appeal period and the Veteran's treatment records do not document any incapacitating episodes due to IVDS. The Board has carefully considered the probative evidence of record, including consideration of any additional functional impairment reported by the Veteran during flare-ups or upon repeated use over time, including any additional limitation of motion. Given the above, and following a review of the evidence of record, the Board concludes that the most probative evidence of the record shows that the Veteran does not meet the requirements for a higher disability rating at either period on appeal. For these reasons, the Board finds that a disability rating in excess of 10 percent for the Veteran's lower back disability for the period prior to May 17, 2021, and in excess of 40 percent thereafter is not warranted. Therefore, the claims must be denied. The evidence preponderates against an increase, so reasonable doubt provisions are inapplicable. 38 C.F.R. § 3.102. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.