Citation Nr: 22018092 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 13-27 469 DATE: March 28, 2022 ORDER Entitlement to an evaluation in excess of 20 percent prior to October 26, 2017 for the service-connected herniated nucleus pulposus, status post laminotomy and discectomy (hereinafter 'back disorder') is denied. FINDINGS OF FACT 1. Initially, the AOJ reduced the evaluation for the back disorder from 20 percent to 10 percent, effective June 16, 2014. The RO increased the rating to 20 percent effective August 24, 2016, and then to 40 percent effective January 6, 2020. 2. In the February 2021 Board decision, in giving the benefit of the doubt in favor to the Veteran based on his reports of flare ups and pain requiring medication, the Board reinstated the 20 percent rating between June 16, 2014 and August 23, 2016, and granted a 40 percent rating for the back disorder beginning October 26, 2017. 3. Prior to October 26, 2017, the Veteran's back disorder resulted in forward flexion ranging from full range of motion to no worse than 80 degrees, which is more consistent with a 10 percent rating, with one report of 40 degrees following repeated use; however, the Board finds that he had consistent, credible complaints of chronic pain requiring prescription medications, physical therapy, additional functional loss during flare ups, and muscle spasms that, in giving him the benefit of the doubt, approximates a rating of 20 percent, but no higher. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for the back disorder prior to October 26, 2017 were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1991 through October 2006. In a June 2008 administrative decision, the Agency of Original Jurisdiction (AOJ) found that the Veteran's active service from January 1991 to March 28, 2004 was honorable for VA purposes ("first period of active service"). However, it also found that his active service from March 29, 2004 through October 2006 was dishonorable for VA purposes ("second period of active service"). The Veteran testified before the undersigned Veterans Law Judge (VLJ) during a June 2018 hearing, and a transcript is of record This appeal has a long procedural history. First, the AOJ reduced the evaluation for the service-connected back disorder from 20 percent to 10 percent, effective June 16, 2014. See May 2015 rating decision. In an April 2019 Board decision, the Board remanded the appeal for further development. The RO then increased the rating to 20 percent effective August 24, 2016, and to 40 percent effective January 6, 2020. See June 2017 rating decision and April 2020 rating decision. Thereafter, in a February 2021 Board decision, the Board, in giving the benefit of the doubt in favor to the Veteran based on his reports of flare ups and pain requiring medication, the Board reinstated the 20 percent rating between June 16, 2014 and August 23, 2016, and granted a 40 percent rating for the back disorder beginning October 26, 2017. The Board also denied a higher rating than 20 percent prior to June 2014 and between August 2016 and October 2017. Thereafter, the Veteran appealed the 2021 Board decision to the United States Court of Appeals for Veterans Claims (CAVC or "Court") in October 2021; whereas the parties filed a Joint Motion for Partial Remand (JMPR) in which they agreed that the portion of the Board's decision that denied an evaluation in excess of 20 percent prior to October 26, 2017 is to be vacated and remanded the issue back to the Board for re-adjudication. The Veteran did not challenge the Board's denial of entitlement to an evaluation in excess of 40 percent from October 26, 2017 for the back disorder, and the appeal as to that issue was dismissed. Cacciola v. Gibson, 27 Vet. App. 45, 47 (2014) (holding that when Appellant expressly abandons an appealed issue or declines to present arguments as to that issue, Appellant relinquishes the right to judicial review of that issue and the Court will not decide it); Pederson v. McDonald, 27 Vet. App. 276, 285 (2015) (en banc). Additionally, it was noted that the Board's grant of a 20 percent evaluation from June 16, 2014 to August 23, 2016 and 40 percent evaluation beginning October 26, 2017, for a back disorder was favorable to the Veteran, and cannot be disturbed. Medrano v. Nicholson, 21 Vet. App. 165, 170 (2007). Since the Board's February 2021 decision, additional medical evidence has been added to the file with respect to other claims. This does not require remand of this claim, however, for a supplemental statement of the case, as none of the additional evidence is relevant to the issue at hand. None of the evidence pertains to the status of the back condition prior to October 2017, so it is not relevant. Increased Rating A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 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 their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 4.3. As noted above, the Veteran is currently service connected for a back disorder evaluated as 20 percent prior to October 26, 2017, and 40 percent thereafter under Diagnostic Code (DC) 5242. In the 2021 JMPR, the parties stated that the Board failed to provide adequate reasons or bases to determine whether the Veteran's functional loss from flare-ups would allow for a higher evaluation prior to October 26, 2017. First, in the 2021 Board decision, the Board considered the Veteran's reports of additional pain and weakness due to flare ups when granting him the higher 20 percent rating. The Veteran's attorney argued to the CAVC that the Board failed to consider his flare ups to grant him higher than 20 percent prior to October 2017; however, that is simply not true. Rather, and the Board will further explain and discuss for clarity purposes below, that it was the consideration of those very flare ups that the Board used to grant him the 20 percent disability rating over the 10 percent rating that the RO had awarded him. Indeed, the RO had decreased his 20 percent rating to a 10 percent rating based his range of motion limitations and his reports in the VA examinations more so approximating a 10 percent rating per regulations. That notwithstanding, the Board granted a 20 percent rating for the entire period on appeal prior to October 2017 based on subjective reports of additional pain and weakness during the reported flare ups. Therefore, the argument that the Board failed to consider his flare ups for a higher rating is inaccurate, as the grant of a 20 percent rating was, in fact, based on his flare ups, as opposed to his range of motion findings which would only qualify him for a 10 percent rating. Next, although the regulations for a back disorder were listed in the Statement of the Case, the Board will again restate them for clarity as there appears to be confusion in the evaluation determinations in the 2021 Board decision. 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; DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (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. 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, at 592. 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 (38 C.F.R. § 4.40), 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 (38 C.F.R. § 4.45). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. Under 38 C.F.R. § 4.59, "the trigger for a minimum disability rating is an actually painful, unstable, or malaligned joint." 38 C.F.R. § 4.59 speaks to both painful motion of joints and actually painful joints. Petitti v. McDonald, 27 Vet. App. 415 (2015). For purposes of 38 C.F.R. § 4.59, objectively confirmed limitation of motion must be corroborated by a person, either lay or medical professional, and may not be satisfied by the Veteran's own observations. Id. (emphasis added). Under the applicable criteria, the General Rating Formula for Diseases and Injuries of the Spine provides that a rating of 10 percent is assignable for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees. A 20 percent is assignable for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. A 40 percent rating is assignable where forward flexion of the thoracolumbar spine is 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assignable for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assignable for unfavorable ankylosis of the entire spine. (emphasis added). Ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. Also, the current schedular rating criteria instructs to evaluate intervertebral disc syndrome (IVDS or degenerative disc disease) 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 evaluation. The evaluation criteria are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine. Therefore, an evaluation based on pain alone would not be appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurologic sections of the rating schedule. See 68 Fed. Reg. 51, 455 (Aug. 27, 2003). A 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. See 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. See 38 C.F.R. § 4.45. In contention in this case is whether the Veteran's back disorder warrants a disability rating higher than 20 percent prior to October 26, 2017. Upon review of all relevant evidence of record, the Board again finds that the disability picture associated with his back disorder does not meet or more nearly approximate an evaluation greater than 20 percent at any time prior to October 26, 2017. The evidence of record supports maintaining the assignment of a 20 percent evaluation of the Veteran's back disorder. The Board notes that the October 2021 JMPR did not consider that the Veteran's range of motion for flexion of the back was measured or documented at 40 degrees (during repeated use/flare ups) to 80 degrees to full range of motion, but rather only discussed the Veteran's subjective reports of flare ups. Indeed, the Veteran's range of motion of flexion was documented at worse to 80 degrees with one report of 40 degrees following repeated use, while other examinations and medical treatment records showed the Veteran's active range of motion as normal or within functional limits. The Veteran was also not found to have 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. There has been no showing of unilateral loss of lateral spine motion in the standing position, severe lumbosacral strain with listing of the whole spine to the opposite side, marked limitation of forward bending in standing position, abnormal mobility on forced motion, or loss of strength. There was also no evidence of muscle atrophy. Without such pathology, an evaluation greater than 10 percent was not warranted, but again, the Board awarded a 20 percent rating based on his flare ups. For example, in the September 2011 VA examination, the Veteran reported flare-ups and described them as numbness in the back of his legs. (Emphasis added). Following testing, it was noted his forward flexion was limited to 80 degrees, 30 degrees of extension, 25 degrees of left and right lateral flexion, and 25 degrees of left and right lateral rotation with objective evidence of pain on motion with no additional loss of motion following repetitive testing, though less movement and pain on movement was noted. Muscle strength, reflex, and sensory testing were all noted as normal, and although the examiner opined he had IVDS, there were no incapacitating episodes requiring bed rest. Based on this examination the Veteran's 20 percent evaluation was continued as the RO stated that "although recent evidence shows some improvement in the condition, sustained improvement has not been definitively established." In the May 2015 VA examination, he reported he had pain rated as 4/10 and that he had flareups one time per year and when he has flareups, the pain is rated a 10/10. However, his description of the pain referred to his radiculopathy pain of being sharp in his toes with numbness. (Emphasis added). His flexion was limited to 80 degrees with pain, with a combined limitation of 190 degrees. The examiner opined the abnormal range of motion does not contribute to functional loss and the pain did not result in additional loss of motion, nor did repetitive use testing reveal additional loss of motion. He had no muscle spasms or guarding, and no ankylosis of the spine or IVDS of the spine that required bed rest. He reported having mild pain when walking and has pain with prolonged sitting for over an hour or with prolonged standing. Further, the examiner noted that while the condition impacted his ability to work, that any time missed from work is related to acute flare ups of his radiculopathy. (Emphasis added). In the August 2016 VA examination, the Veteran reported flare-ups which he described as causing him difficulty straightening up, increased pain, numbness down right side of lower back to right leg and toes. (Emphasis added). He also had loss of motion in forward flexion to 50 degrees, further declined to 40 degrees, extension to 20 degrees, further declined to 10 degrees right and left lateral flexion both to 30 degrees, further declined to 20 degrees each, and right and left rotation both to 30 degrees, further declined to 20 degrees, with pain, tenderness, and fatigue. The examiner noted he had less movement than normal; instability of station; disturbance of locomotion; and interference with standing. He did not have ankylosis of the spine, and although he had IVDS, he had no episodes that required best rest prescribed by a physician. His medical records also show that a 20 percent rating, but no higher, is warranted. In a June 2011 private rehabilitation evaluation following a motor vehicle accident, his range of motion was noted to be limited at 60 degrees; but the doctor stated that his lumbar spine had complete range of motion but the flexion was painful. In a follow up in August 2011, it was noted that he had little pain with full range of motion with goals to have pain-free functional range of motion as he had some pain at the end range. In March 2012, it was noted he was involved in another motor vehicle accident where he reported back pain. In April 2013, he reported his pain was well controlled with Gabapentin and rated the severity a 2/10, but in a follow up in July 2013, he reported the pain was rated a 9/10. In December 2013, it was noted that he strained his back that radiated down his right leg after bending over to lift a box and the strain kept him in bed for two days, but upon testing, it was noted he had full range of motion. In June 2014, he reported acute lower back pain after squatting with heavy weights at the gym and he had pain on flexion and extension, though degrees were not reported. In July 2014, he reported the pain is more constant resulting in pain in his groin which causes difficulty walking. The pain was described as sharp and aching with the pain level rated as 4/10 at best and 10/10 at worst with the current rated 6/10. The range of motion testing revealed flexion limited to 80 degrees with a combined limitation greater than 120 degrees. His gait was normal. In September 2014, he reported increased back pain, but he described sciatic pain in the right lower extremity and his back had full range of motion. In April 2015, he reported using a back brace, heating pads, and a TENS unit and takes Gabapentin at night, Flexeril as needed, as well as lidocaine gel, Tramadol and Naproxen as needed. The doctor also noted that his worsened symptoms were numbness/tingling in the right foot and reported sciatic pain. 2015 physical therapy records showed treatment for low back pain, and that the Veteran complained of right radicular pain; it was noted he had limited range of motion in flexion and extension (but no degrees reported). In December 2015, after moving and establishing care at a new VAMC, it was noted that he had radiculopathy and was scheduled to undergo removal of a spur and have decompression of his nerves. He stated that his symptoms for both his neck and back were well controlled with taking Gabapentin at night. (Emphasis added). Although the Veteran's limitation of flexion continued to be no worse than 80 degrees during the 2011 and 2015 VA examination and as noted in his medical history (and at worse limited to 40 degrees after repetitive use testing in the 2016 examination), the totality of the medical evidence continued to show that he took pain medication for his back disability, stating it provided good control of his symptoms. The Board determined that they will not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Thus, the Board found in 2021 and continues to find that the Veteran's back condition more nearly approximates the criteria for a 20 percent rating when considering these reports of worsening pain with activity, the frequency and length of his flare-ups, and his use of pain medication. (Emphasis added). Moreover, there is no dispute that the Veteran has required treatment including prescribed medications and physical therapy for his back condition Therefore, even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, the Board does not find that the Veteran's functional losses equate to the criteria required for a 20 percent or greater rating under the General Rating Formula for Diseases and Injuries of the Spine. see 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.45, 4.71a; DeLuca. Again, after taking into account the medical findings and the lay statements, the evidence still does not suggest that motion was limited to the requisite degree for a higher rating of 40 percent for any time prior to October 2017. Therefore, even with the reports of flare-ups, the Board finds that the overall impairment resulting from his back disability would still more closely approximate no more than a 20 percent evaluation for the period prior to October 26, 2017. With no objective evidence that the Veteran meets the criteria for an increased evaluation based on limitation of motion, and even considering subjective symptoms such as pain and tenderness and additional limitations during flare ups, the Board concludes that the greater weight of evidence is against assigning an evaluation in excess of 20 percent as contemplated by the holding in Deluca. As such, the Board finds there was no medical evidence reflecting the Veteran's back disorder manifested with symptoms comparable to forward flexion of 30 degrees or less, or unfavorable or favorable ankylosis of the lumbar spine prior to October 2017. With respect to the possibility of assigning a higher rating under 38 C.F.R. §§ 4.40, 4.45, there is no indication in the medical evidence of record that any subjective complaints, such as pain, fatigue, incoordination, or weakness, resulted in additional limitation of function, and the Veteran's evaluation was already increased to 20 percent based on his subjective reports of pain, stiffness, and functional loss, which includes his reports of flare ups. (Emphasis added). There is no indication in the claims file that any subjective factors resulted in limitations equivalent to ankylosis of any kind or forward flexion of 30 degrees or less, even when considering additional functional loss during flare ups, as needed for an increased rating under the General Formula. The Board further notes that although the Veteran reported pain on motion during his examinations, the Court has clearly indicated that painful motion does not equate to limited motion. Mitchell, 25 Vet. App. at 41. In fact, while the Court considered the argument that pain throughout all ranges should warrant the maximum rating, it ultimately found that the "Secretary has persuasively argued that such an interpretation would lead to absurd results." Id. at 43. Indeed, nothing in the case law supports the contention that a Veteran should be given maximum disability ratings simply because he or she may experience pain throughout the range of motion. Id. at 43. Rather, pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance to constitute a functional loss and it is the presence of this functional loss that is the relevant question in assigning disability ratings. Id. That notwithstanding, in granting the Veteran the higher rating of 20 percent for the entire period prior to October 2017, the Board did, in fact, consider the additional reports of pain reported by the Veteran during testing and during his flare ups. As for other diagnostic codes, in order to receive a rating for IVDS Based on Incapacitating Episodes, the back disability would have to result in incapacitating episodes having a duration of at least 4 but less than 6 weeks during a 12-month period. However, there is simply no evidence documenting physician-prescribed bedrest. While he may have voluntarily restricted his physical activities or rest in bed during periods of increased symptoms, VA's rating schedule defines an incapacitating episode as prescribed bed rest from a physician. However, with no medical evidence of record documenting physician-prescribed bedrest, an evaluation is not warranted for IVDS Based on Incapacitating Episodes. Further, as under Note (1), the General Rating Formula directs that any associated objective neurologic abnormalities including but not limited to bowel or bladder impairment are to be separately evaluated under an appropriate DC. However, the Veteran is already receiving a separate evaluation to compensate him for his lower extremity radiculopathy as secondary to his back condition. There is no evidence of other neurological abnormalities such as bowel or bladder impairment. Finally, as explained above, although there may be pain on all movement, there is no objective evidence that the Veteran's pain results in additional functional loss that would warrant an increased schedular rating during this period; even considering the subjective reports of flare ups and pain, the evidence does not indicate his pain would have limited him to 30 degrees or less. The Board found his statements of limitations were credible and probative evidence and awarded a 20 percent rating with consideration of those statements. Regardless, such evidence does not show that any additional limitation due to pain and the flare ups would more nearly approximate a finding of forward flexion of the thoracolumbar spine less than 30 degrees. See 38 C.F.R. § 4.45, 4.71a, Diagnostic Code 5242; DeLuca, 8 Vet. App. at 202; Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board acknowledges that in the JMPR, it was stated that the Board should also consider whether a retrospective opinion is warranted to comply with the Court's holdings in Sharp and Correia. See Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017); Correia v. McDonald, 28 Vet. App. 158, 170 (2016). However, in any event that the Veteran and/or his representative argue that such an opinion is warranted, the Board disagrees as the Board does not wish to remand for potential negative development. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (cautioning against multiple remands for the sole purpose of developing negative evidence against a claim). Further, as discussed above, the Board finds the evidence of record demonstrates a 20 percent rating is warranted for the period prior to October 2017, regardless of the non-compliant examinations held in 2011, 2015, and 2016 which were performed prior to the Sharp and Correia holdings in 2016 and 2017, respectfully. Thus, there is no prejudice to the Veteran in not obtaining a retrospective opinion in order to rate the disability based on limitation of motion, lay evidence, and the DeLuca factors, as these were all already contemplated in awarding the Veteran the higher 20 percent rating in the 2021 Board decision. In this regard, although the VA examinations outlined above are non-compliant with Correia and Sharp with respect to limitation of motion, all the examination results demonstrated that he is able to achieve some movement of the spine and that his limitation was consistently shown as normal to limited to 80 degrees, with one finding showing limitation to 40 degrees followed repetitive use; thus, a retrospective opinion on range of motion results would not offer any additional medical evidence that would warrant a rating higher than the 20 percent rating. Further, again, as to the argument that flare ups were not considered in the prior 2021 Board decision, as clearly discussed above, the Board made a favorable finding to grant the Veteran a higher, 20 percent rating for the entire period prior to October 26, 2017 based on his reports of flare ups and pain and medication use for such, whereas only a 10 percent rating would otherwise be warranted. The Board also granted an earlier effective date for the award of a 40 percent rating based on his reports of flare ups. Therefore, it is unreasonable to argue that flare ups were not considered in the 2021 Board decision, and it would be frivolous to continue to argue otherwise it is again pointed out that the Veteran himself reported in all three examinations that the flare ups were more consistent with his radiculopathy and in his right lower extremity than in his back, but the Board granted him the benefit of the doubt based on his reported flare ups of the back. In sum, the evidence pertaining to the back disorder prior to October 2017 was quite clearly against the Veteran's request for a rating in excess of 20 percent and thus not in approximate balance and not 'nearly equal'; therefore, the benefit of the doubt rule has no application. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Therefore, a rating in excess of 20 percent prior to October 26, 2017 is denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.Hoy, Associate 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.