Citation Nr: 22014645 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 17-46 195 DATE: March 14, 2022 ORDER Entitlement to an increased rating of 20 percent for a low back disability, prior to January 26, 2017, is granted, but no higher. Entitlement to a rating in excess of 10 percent prior to November 1, 2019, for a bilateral foot disability, is denied. FINDINGS OF FACT 1. Prior to January 26, 2017, the Veteran's low back disability manifested in an abnormal gait; however, forward flexion was not less than 30 degrees and there was no evidence of ankylosis, to include the functional equivalent of ankylosis of the entire thoracolumbar spine. 2. Prior to November 1, 2019, the Veteran's bilateral foot disability manifested in pain on manipulation and use of the feet; however, the pain was not accentuated. CONCLUSIONS OF LAW 1. The criteria for a rating of 20 percent for low back disability prior to January 26, 2017, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5010-5237. 2. Prior to November 1, 2019, the criteria for a rating in excess of 10 percent for a bilateral foot disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.59, 4.7, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1987 to July 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Winston-Salem, North Carolina. The Board remanded these matters in January 2019 for additional development of the evidence. In January 2021, the Board, in pertinent part, denied a rating higher than 10 percent for a back disability prior to January 26, 2017, and a rating higher than 10 percent for bilateral foot disability prior to November 1, 2019. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In December 2021, CAVC granted a Joint Motion for Partial Remand (JMPR) vacating the Board's January 2021 decision to the extent that it denied the claims on appeal and remanded them for further adjudication consistent with the motion. Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). When the appeal arises from an initial assigned rating, consideration must be given 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). However, staged ratings are also 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 rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, that does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). The rating of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). 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. It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. When rating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. 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. 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. VA must consider the claim for a higher rating pursuant to the former and revised regulations after February 7, 2021. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Prior to February 7, 2021, the criteria for degenerative arthritis established by X-ray findings are rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Effective February 7, 2021, DC 5010 provides that post-traumatic arthritis is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with applicable regulations. The Board notes that the periods on appeal for both claims are prior to this change in law. 1. Entitlement to a rating of 20 percent, but not higher, for a back disability, prior to January 26, 2017, The Veteran's lumbar spine disability is rated 10 percent as of July 29, 2015, under Diagnostic Code 5010-5237. Under Diagnostic Code 5010, traumatic arthritis is rated as degenerative arthritis under Diagnostic Code 5003. Diagnostic Code 5003 provides for rating on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved. Disabilities rated under Diagnostic Codes 5235 to 5243 are rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. The General Rating Formula for Diseases and Injuries of the Spine provides that 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 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 of 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 rating 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. For VA compensation purposes, 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 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. 38 C.F.R. § 4.71a, Plate V, General Rating Formula for Diseases and Injuries of the Spine, Note (2). The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (4). 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 (0 degrees) always represents favorable ankylosis. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (6). Evidence A review of the private and outpatient VA treatment records shows that the Veteran has been treated for low back pain throughout the appeal period. Treatment records do not show ankylosis or incapacitating episodes having a total duration of at least six weeks during any 12-month period for the duration of the appeal. At the December 2015 VA examination for the Veteran's back, the Veteran reported back pain and stiffness which were treated with medication. The Veteran had flare-ups which affected the ability to lift and bend. During flare-ups, the Veteran had limited ambulation and climbing, bending, and lifting were also limited. Range of motion testing found forward flexion to 75 degrees, extension to 25 degrees, right lateral flexion to 25 degrees, left lateral flexion to 25 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 25 degrees. The examiner found that the range of motion did not contribute to functional loss. There was pain on forward flexion, right lateral rotation, and left lateral rotation. The examiner noted no objective evidence of pain with weight bearing or tenderness to palpation of the joint or associated soft tissue. The Veteran performed repetitive use testing without additional functional loss. The Veteran reported pain with repeated use over time and on flare-ups, but the examiner did not find associated loss of range of motion. The Veteran did not have guarding or muscle spasms. There was no ankylosis and no intervertebral disc syndrome. The examiner found that the functional impact of the Veteran's back condition caused limitations in lifting, bending, climbing, pushing, and pulling. A January 2017 treatment note from the Veteran's private physician shows treatment for low back pain and muscle spasm. See VBMS, document labeled Medical Treatment Record, Non-Government Facility, receipt date April 19, 2017, page 1 of 7. The Veteran reported back spasms and clinching with walking and stiffness and tightness in the center of the lower back. The Veteran had a slow gait, full range of motion, and tenderness to palpation of the left and medial sacral spine. VA treatment records contain X-ray studies from September 2017 which found mild, mid to lower lumbar degenerative changes. After reviewing the record, the Board resolves all reasonable doubt in support of a 20 percent disability rating prior to January 26, 2017. In this regard, the Board finds the January 2017 private treatment record to be the most probative evidence of record that reflects the low back disability's symptomatology during the period on appeal. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (noting that the credibility and weight of the opinions are within the province of the adjudicator); see also Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion.). Here, the VA examinations conducted prior to January 2017 did not provide complete findings in order to adequately rate the Veteran's disability. See December 2021 CAVC Decision. The parties to the December 2021 joint motion found that the December 2015 VA examination did not address both active and passive motion in weight bearing and non-weight bearing. 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158 (2016). Rather, the Board resolves all reasonable doubt in favor of a finding that the January 2017 private treatment note is reflective of the level of disability throughout the appeal period, with an abnormal gait and therefore productive of a 20 percent disability rating. 38 C.F.R. § 4.3. The preponderance of the evidence is against a finding that a rating greater than 20 percent may be assigned prior to January 26, 2017. There is no evidence that the Veteran's low back disability manifested in forward flexion limited to 30 degrees or less, even considering during flare-ups. At the December 2015 VA examination, the Veteran reported flare-ups which affected the ability to "lift and bend" and "limited ambulation and climbing, bending, and lifting." While the Veteran's description of limited bending suggests his range of motion is limited, the remaining probative evidence of record does not evince that the range of motion is limited to 30 degrees or less or its functional equivalent. On the other hand, the Veteran complained of limited ambulation and this is consistent with an altered gait, commensurate with a 20 percent rating. Thus, the criteria for a rating of 20 percent have been met prior to January 26, 2017. Moreover, the Veteran has not contended, nor does the evidence reflect that the low back disability has resulted in ankylosis of any kind, to include the functional equivalent of ankylosis. Chavis v. McDonough, 34 Vet. App. 1 (2021). At most, the Veteran has described pain and limited movement due to her back disability, but she has not contended that such results in the spine being functionally fixed or otherwise ankylosed. As such, a rating greater than 20 percent prior to January 26, 2017, is denied. 2. Entitlement to a rating in excess of 10 percent prior to November 1, 2019, for a bilateral foot disability, The Veteran contends that an increased rating is warranted for her bilateral foot disability prior to November 1, 2019. From July 29, 2015, to November 1, 2019, she is in receipt of a 10 percent rating for her feet. Diagnostic Code 5276 provides that a 10 percent rating is warranted for moderate acquired flat foot with weight-bearing line over or medial to great toe, inward bowing of the tendo-achilles, pain on manipulation and use of the feet, bilateral or unilateral. A 20 percent rating is assigned for severe unilateral acquired flat foot with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is warranted for severe bilateral acquired flat foot with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is also warranted for pronounced unilateral acquired flatfoot with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo-achilles on manipulation, not improved by orthopedic shoes or appliances. A maximum 50 percent rating is warranted for bilateral acquired flatfoot with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo-achilles on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. Evidence During a December 2015 VA foot examination, the Veteran reported bilateral foot pain, described as soreness and aches. The foot pain was treated with medication, shoe inserts, and immobilization. The Veteran had bilateral foot pain on use and manipulation of the feet. However, the examiner noted that the pain was not accentuated on use or manipulation. There was no swelling, and the Veteran did not have characteristic calluses. The symptoms continued despite the use of arch supports. The Veteran did not have extreme tenderness of the plantar surfaces, deformity of the foot or lower extremity, marked pronation, inward bowing of the Achilles' tendon, marked inward displacement of the foot, or severe spasm of the Achilles' tendon. There was pain on examination which caused functional loss. Pain on weight-bearing, disturbance of locomotion, and interference with standing were contributing factors of the disability. The examiner remarked that the Veteran had no recent decline in ambulation or recent changes in activities of daily living performance. Pain significantly limited functional ability during flare-ups or when the feet were used repeatedly over a period of time. The examiner opined that there was functional loss during flare-ups that would make prolonged standing or walking difficult. At a November 2019 VA foot examination, the Veteran reported that her feet cramped, causing sharp pain, and her toes locked. The Veteran had flare ups. When driving, her feet started to cramp and toes locked and the Veteran had to pull over and remove both shoes. The flare-ups would wake the Veteran at night. For relief the Veteran used massages or "walks it out." The examiner found the Veteran to have functional loss that manifested as a limited ability to walk or drive during flare-ups. The Veteran had bilateral pain on use with pain accentuated on use. There was swelling on use, but the Veteran did not have characteristic calluses. The Veteran had tried arch supports, but the symptoms remained. The examiner found no bilateral extreme tenderness of the plantar surfaces, marked deformity of the feet, marked pronation, weight-bearing line over or medial to the great toe, lower extremity deformity, inward bowing of the Achilles' tendon, displacement or severe spasm, marked inward displacement of the foot, or severe spasm of the Achilles' tendon. On physical examination, there was no pain, but pain was noted with prolonged standing. Interference with standing and pain after prolonged standing were contributing factors of the disability. Cramping pain significantly limited functional ability during flare-ups or when the feet were used repeatedly over a period of time. The examiner opined that there was functional loss during flare-ups that would make it difficult to walk or bear weight. The November 1, 2019, VA examination is the basis for the increased rating from 10 percent to 30 percent. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for a bilateral foot disability prior to November 1, 2019. In order to warrant an increased 30 percent rating, the evidence would have to indicate severe bilateral flat foot with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, or characteristic callosities. The Board cannot locate and the Veteran has not identified any objective evidence in support of more severe limitations in her feet. The Veteran is not competent to provide a medical opinion relating to the objective medical evidence required for a higher rating. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board acknowledges the Veteran's lay reports of symptoms and the functional loss due to pain, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran's lay reports of symptoms and functional loss, the degree of additional limitation caused by those symptoms does not result in symptoms more nearly approximating severe bilateral or unilateral flatfoot. Specifically, and as the parties to the joint motion noted, that the Veteran had pain on use and manipulation of the feet, the Board notes that the Veteran did not have pain accentuated on use or manipulation of the feet. (continued on next page) Accordingly, the Board finds that the preponderance of the evidence is against the claim for a rating in excess of 10 percent for a bilateral foot disability prior to November 1, 2019. Thus, the claim for higher rating for a bilateral foot disability must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Ian M. Hitchcock Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hammad Rasul, 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.