Citation Nr: 22014676 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 18-26 166 DATE: March 14, 2022 ORDER Entitlement to an increased initial evaluation in excess of 10 percent for lumbar spine degenerative arthritis with scoliosis (back disability) is denied. FINDING OF FACT The Veteran's back disability has been manifested by pain and a range of motion greater than 60 degrees of flexion and a combined range of motion greater than 120 degrees. There has been no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, ankylosis, or incapacitating episodes. CONCLUSION OF LAW The criteria for an initial increased disability rating in excess of 10 percent for a back disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 4.71a, Diagnostic Code (DC) 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1980 to June 1980. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was afforded a hearing before the undersigned Veterans Law Judge (VLJ) in January 2021. A copy of the transcript is of record. This claim was previously before the Board in September 2021, at which time it was remanded for additional development. That development having been completed; this claim is once again before the Board. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. Where there is a question as to which of two evaluations 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. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1377 (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C. § 5107 (a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). The Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran claims that her back disability is worse than currently reflected by her evaluation of 10 percent. Under the General Rating Formula, the regulations provide for a 10 percent rating when 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 is 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 height. 38 C.F.R. § 4.71a. A 20 percent rating is assigned when forward flexion of the thoracolumbar spine is 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 there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent rating is warranted if the medical evidence shows forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. Id. These ratings are warranted if the above-mentioned manifestations are present, 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the 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 all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant 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. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The Veteran was provided with a VA examination in July 2017. The Veteran was diagnosed with degenerative arthritis of the lumbar spine, degenerative joint disease of the lumbar spine, and scoliosis of the lumbar spine. No flare-ups were noted. Range of motion revealed a flexion of 90 degrees, extension of 30 degrees, right lateral flexion of 30 degrees, left lateral flexion of 30 degrees, and bilateral lateral rotation of 30 degrees, all with objective evidence of pain. There were no additional losses of range of motion or additional pain on repetition. There were no findings of incapacitating episodes or ankylosis. The examiner opined that there was no effect of this condition on the Veteran's employment. The Veteran was provided with an additional VA examination in November 2021. The Veteran was diagnosed with lumbar spine degenerative arthritis with scoliosis. No flare-ups were reported. However, the Veteran noted difficulties reaching, carrying heavy loads, and walking, sitting, or standing for prolonged periods. Active range of motion testing revealed a flexion of 70 degrees, extension of 20 degrees, right lateral flexion of 15 degrees, left lateral flexion of 15 degrees, right lateral rotation of 30 degrees, and left lateral rotation of 20 degrees, all with objective evidence of pain. Passive range of motion testing revealed a flexion of 70 degrees, extension of 5 degrees, right lateral flexion of 20 degrees, left lateral flexion of 20 degrees, right lateral rotation of 40 degrees, and left lateral rotation of 20 degrees. There were no additional losses of range of motion or additional pain on repetition or estimated for use over time. There were no findings of incapacitating episodes or ankylosis. The examiner opined that there were effects of this condition on the Veteran's employment involving prolonged sitting, standing, or walking as well as carrying heavy loads. After having reviewed the evidence of record, the Board finds that the Veteran's back disability does not warrant an evaluation in excess of 10 percent. The evidence of record shows that the Veteran's condition was manifested from November 2021 with compensable loss of motion resulting in forward flexion between 60 degrees and 85 degrees, but no less and combined range of motion greater than 120 degrees, but not greater than 235 degrees, but no less. Therefore, during that time period the Veteran's condition meets the requirements for a 10 percent evaluation due to loss of motion. Prior to November 2021, the Veteran's range of motion was even greater, which does not support an increased evaluation. In order to warrant a higher evaluation, the Veteran would need to show the presence of worsened limitation of motion, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, incapacitating episodes, or ankylosis, none of which have been shown by the medical evidence of record at any time during the period of appeal. Thus, in accordance with the Rating Schedule, no more than a 10 percent evaluation is warranted. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dodd, Ryan 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.