Citation Nr: 22016479 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 17-20 907 DATE: March 22, 2022 ORDER Entitlement to a disability rating in excess of 40 percent for lumbar spine status post microdiscectomy with degenerative changes (back disability), is denied. FINDING OF FACT The most persuasive evidence of record shows that lost motion of the spine is not manifested by unfavorable ankylosis of the entire thoracolumbar spine even when considering her complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups; nor is it manifested by incapacitating episodes that required bed rest prescribed by a physician and treatment by a physician having a total duration of at least 6 weeks during a 12-month period at all times during the appeal. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for a back disability have not been met at any time during the appeal. 38 U.S.C. §§ 1155, 5100, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 3.655, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.71a, Diagnostic Codes 5235 to 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2000 to January 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in February 2019 and November 2021 and was remanded for additional development. The case is once again before the Board. Lastly, the Board notes that the Veteran is in receipt of a combined 100 percent disability rating from July 21, 2020. However, the current appeal does not include a claim for a total rating based on individual unemployability (TDIU) and the record does not suggest that the Veteran's service-connected back disability renders her unemployable. Accordingly, the Board finds that a total disability rating claim based upon individual unemployability is not part of the claim for a higher rating in this case. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). In any event, considering the 100 percent rating, the issue of a TDIU is effectively moot. The Post-Remand Development and Correia and Sharp Concerns Initially, in adjudicating below whether the Veteran meets the criteria for a higher evaluation for her back disability the Board has not overlooked the Court's holdings in Sharp v. Shulkin, 29 Vet. App. 26 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016). Tellingly, the Board finds that the record is adequate to address the concerns raised by the Court in both these cases. Specifically, the Board finds that the March 2014, June 2016, and September 2019 VA examinations provide VA with medical opinion evidence adequate to rate the Veteran's back disability when considering her complaints of pain with and without weight bearing and resistance in passive and active range of motion (see Correia, supra) as well as during flare-ups (see Sharp, supra) because the examiners, as a whole, addressed each of these concerns. Next, the Board finds that the post-Remand development substantially complied with the prior Remands because all identified and available VA and private treatment records were obtained and associated with the claims file. See 38 U.S.C. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008); see also November 2021 Supplemental Statement of the Case (SSOC). Therefore, the Board finds that further delay by remanding these issues to provide the Veteran with a new VA examination or obtain further records is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided); see also Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). Increased Rating Claims The Veteran contends that her back disability is more severe than represented by the rating assigned at all times during the appeal. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The rating 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. An increase in the evaluation assigned for a disability is warranted when the average impairment in earning capacity resulting from such diseases and injuries in civil occupations has increased and the disability picture meets the criteria required for a higher rating. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Importantly, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. 38 C.F.R. § 4.14. 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 or overlapping with the symptomatology of the other condition. Id. 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 (2016); DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (Court) has 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); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). 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, 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. 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. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, in Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012) the Court held that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria. The Court in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. Lastly, in Chavis v. McDonough, 34 Vet. App. 1 (2021), the Court held that ankylosis of the spine may be shown based on symptoms of fixation of the joint equivalent to ankylosis. The Board also notes that except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA 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); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Merits of the Claim 1. Entitlement to a rating in excess of 40 percent for a lumbar spine disability Prior to March 11, 2016, the Veteran's back disability was rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242, for lumbar spine status post microdiskectomy with degenerative changes as 10 percent disabling from January 5, 2004, 100 percent temporary disabling from July 27, 2011 and 10 percent from October 1, 2011. Thereafter, the Veteran's spine disability is rated under Diagnostic Code 5243, as 40 percent disabling from March 11, 2016. At the outset, the Board notes effective February 7, 2021, the Schedule for Rating Disabilities, Musculoskeletal System and Muscle Injuries, has been amended. See 85 Fed. Reg. 76453 (Nov. 30, 2020). Specifically, Diagnostic Code 5242 (degenerative arthritis) has been amended to include degenerative arthritis; degenerative disc disease other than intervertebral disc syndrome. Diagnostic Code 5243 (intervertebral disc syndrome) has been amended to assign Diagnostic Code 5243 only when there is disc herniation with compression and/or irritation of the adjacent nerve root; and to assign diagnostic code 5242 for all other disc diagnoses. See 85 Fed. Reg. 76453 (Nov. 30, 2020). The Board notes that these changes do not alter the way the Veteran's back disability is rated by VA under the relevant diagnostic criteria in this claim, especially for the time periods on appeal (i.e., prior to February 7, 2021). Nonetheless, to the extent the changes apply to a diagnosis of her spine condition, as the Veteran's claim was received prior to the effective date of the regulation changes, the Board will consider the Veteran's back disability under both the old and new revised rating criteria and will apply the old rating criteria if the result is more favorable to the Veteran. Notably, if the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change, which is February 7, 2021. For reasons outlined, the Board finds that a remand to provide the Veteran with notice of the change in the rating criteria is not required. See Sabonis, supra. Unless a disability rated under Diagnostic Code 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a disability rating under Diagnostic Code 5242 or 5243 will be rated under the General Rating Formula for Disease and Injuries of the Spine. See 38 C.F.R. § 4.71a. The General Rating Formula for Disease and Injuries of the Spine provides that with or without such symptoms as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 40 percent rating is warranted if forward flexion of the thoracolumbar spine being 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; and 100 percent rating if there is unfavorable ankylosis of the entire spine. Note (2) to the General Rating Formula for Diseases and Injuries of the Spine provides that normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. See also 38 C.F.R. § 4.71a, Plate V. Intervertebral Disc Syndrome (IVDS) may be evaluated either under the General Rating Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes, depending on which method results in the higher evaluation when all disabilities are combined. Under the Formula for Rating IVDS Based on Incapacitating Episodes, Diagnostic Code 5243 provides a 10 percent rating for IVDS with incapacitating episodes having a total duration of at least one week, but less than two weeks during the past 12 months; a 20 percent rating for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months; a 40 rating for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months; and a 60 percent rating for incapacitating episodes having a total duration of at least six weeks during the past twelve months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 provides that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Importantly, the Veteran does not have acute signs and symptoms due to her intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician at any time on appeal. Therefore, Formula for Rating IVDS Based on Incapacitating Episodes is not applicable to the Veteran's claim. With the above criteria in mind, the Board finds that even when considering the Veteran's complaints of pain for her back disability, as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holdings in Correia, Sharp, Mitchell, Burton, Southall-Norman, Chavis and DeLuca, as well as when considering the appellant's competent reports of her observable adverse symptomatology (see Davidson, supra), she does not meet the criteria for at least the next higher, 50 percent, rating at any time on appeal because there is not unfavorable ankylosis of the entire thoracolumbar spine. The Board has reached this conclusion because the ranges of motion of the Veteran's spine taking into account the above criteria were as follows at her VA examinations: at the March 2014 VA examination forward flexion of the lumbar spine was 90 degrees or greater (with pain beginning at 0 degrees) and extension was 30 degrees or greater; at the June 2016 VA examination forward flexion of the lumbar spine was 30 degrees and extension was 10 degrees; at the September 2019 VA examination forward flexion of the lumbar spine was 30 degrees and extension was 5 degrees; The Board notes that the Veteran's private and VA treatment records do not document ankylosis, favorable or unfavorable, of the thoracolumbar spine. Tellingly, the record is uniform in documenting at least some motion, albite limited and ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See March 2014 VA Examination (Veteran reported that she goes to the gym 7 days a week even if it is for only 20 minutes a day because it feels better to move); June 2016 VA Examination (Veteran reported that she is able to walk about 2 miles if she is allowed to stop and start with stretching; and September 2019 VA Examination (Veteran reported certain movements, or normal movements, like picking something up or standing up out of a chair cause flare ups of back pain). Moreover, the Board finds that the Veteran is not competent to provide a finding of unfavorable ankylosis of the thoracolumbar spine because it is medical in nature and she does not have the required expertise. See Davidson, supra. Put simply, the Board finds the Veteran does not meet the criteria for a higher rating of 50 percent because the record is negative for a diagnosis of ankylosis of the thoracolumbar spine, favorable or unfavorable, at any time during the appeal. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a; Fenderson, supra; Hart, supra. In fact, the March 2014, June 2016, and September 2019 VA examiners specifically opined that the Veteran did not have ankylosis and these medical opinions are not contradicted by any other medical evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Furthermore, treatment records indicate that the Veteran has been doing well with movement (i.e., not in unfavorable ankylosis), as she is doing all of the housework and yardwork at her home. See June 2020 Wausau Satellite Whole Health Coaching Consultation Notes. Simply stated, not all the evidence in this case supports the current findings. Likewise, the Board finds that the Veteran does not meet the criteria for a rating in excess of 40 percent for her back disability under the Formula for Rating Intervertebral Disc Syndrome at any time during the appeal period because the record, including the March 2014, June 2016, and September 2019 VA examinations, are negative for her having physician ordered bedrest much less 6 weeks of incapacitating episodes during any 12-month period during the pendency of the appeal. See Colvin, supra. Moreover, the Board finds that the Veteran is not competent or credible to provide the missing evidence of having physician ordered bedrest because this is a medical finding and she does not have the required training or expertise. Further, treatment records do not show she ever had a total of at least 6 weeks of incapacitating episodes during any 12-month period during the pendency of the appeal. See Davidson, supra. As to a rating higher than 50 percent for the back disability, the Board finds that even when considering the Veteran's complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, Chavis and DeLuca, as well as when considering the appellant's competent reports of her observable adverse symptomatology (see Davidson, supra), she does not meet the criteria for at least the next higher, 100 percent, rating because there is not unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242; Fenderson, supra; Hart, supra. The Board also finds that the Veteran's private and VA treatment records do not document unfavorable ankylosis of the entire spine as well as finds that the Veteran is not competent to provide such a finding because it is medical in nature. See Colvin, supra; Davidson, supra. The Board has undertaken a detailed review of the evidentiary record and finds that the criteria for a rating in excess of 40 percent for the Veteran's back disability is not met at any time during the appeal under 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. See Fenderson, supra; Hart, supra; Davidson, supra; Colvin, supra. Nothing above suggests that the Veteran is not having problems with this disability. The only question is the degree of the problem based on the evidence and the law. It is important for the Veteran to understand that the medical findings provide highly probative evidence against the claim that the Board cannot, unfortunately, ignore. In addition, the Board has not overlooked the claims from the Veteran regarding her adverse symptomatology. See Davidson, supra. However, the Board finds the VA examiner's opinions as to the Veteran's adverse symptomatology more probative than the lay claims from the appellant to the contrary even though her symptomatology is observable by a lay person because the examiner has medical training. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). (Continued on the next page) Finally, neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin,28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In reaching the above conclusions the Board has considered the applicability of the benefit of the doubt doctrine. However, as there is not an approximate balance of positive and negative evidence regarding the claim that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Davidson 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.