Citation Nr: 22048044 Decision Date: 08/24/22 Archive Date: 08/24/22 DOCKET NO. 18-09 575 DATE: August 24, 2022 ORDER Entitlement to a rating higher than 20 percent for a lumbar spine (low back) disability is denied. REMANDED Entitlement to service connection for a neurological disability of the left upper extremity, secondary to the service-connected lumbar spine disability, is remanded. FINDING OF FACT At worst, the Veteran's lumbar spine disability is manifested by forward flexion to 36 degrees with pain after repeated use over time, but without ankylosis. CONCLUSION OF LAW The criteria are not met for entitlement to a rating higher than 20 percent for the lumbar spine disability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC/Code) 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1960 to October 1963 and from July 1964 to June 1985. This appeal to this Board of Veterans' Appeals (Board) is from an October 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). The Veteran testified in support of these claims during a hearing in October 2019 before the undersigned Veterans Law Judge of this Board. A transcript of the hearing is of record. In June 2020, the Board remanded these claims back to the RO, so back to the AOJ, for further development and consideration that included having the Veteran reexamined to reassess the severity of his lumbar spine disability and to determine the etiology of any neurological deficit or impairment in his left upper extremity, especially in terms of whether attributable to his low back disability. There since has been the required compliance certainly the acceptable substantial compliance, with those remand directives, at least as concerning the claim for a higher rating for the low back disability. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Unfortunately, however, there has not been this required substantial compliance concerning the derivative claim for left upper extremity neurological impairment, so the Board is again remanding this claim. Id. The Veteran initially requested a second hearing concerning these claims, but he withdrew that request in January 2022 written correspondence to this Board. 1. Entitlement to a rating higher than 20 percent for the lumbar spine (low back) disability The Veteran's lumbar spine disability is rated under 38 C.F.R. § 4.71a, DC 5242, which is part of the General Rating Formula for Diseases and Injuries of the Spine. It is characterized as lumbar spine degenerative joint disease (DJD), i.e., arthritis with degenerative disc disease (DDD). Disabilities of the spine may be evaluated under either the General Rating Formula for Diseases and Injuries of the Spine, DCs 5235-5242, or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on incapacitating episodes, DC 5243, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Note (1) in this Formula for Rating IVDS based on incapacitating episodes defines an incapacitating episode as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. In years past, DC 5242 concerned degenerative arthritis (DJD) exclusively, see also DCs 5010 and 5003, whereas DC 5243 concerned DDD (IVDS). However, there were revisions to the rating criteria that took effect as of February 7, 2021, and, among other things, they now allow for rating both arthritis (DJD) and DDD (IVDS) under DC 5242 in certain circumstances. DC 5243 now explains to assign this DC only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign DC 5242 for all other disc diagnoses. If, as here, a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). 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. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. Id. Therefore, in deciding this appeal, the Board will consider the Veteran's disability under the old criteria prior to February 7, 2021, and under both the old and new rating criteria from February 7, 2021, onwards. The criteria that are more favorable to him will be applied again, however, only as of February 7, 2021, if the revised criteria. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). According to DC 5242 and this General Rating Formula, 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 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 to 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 evaluation is warranted for unfavorable ankylosis of the entire spine (meaning when additionally considering the adjacent cervical segment). Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate DC. Id. at Note (1). Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). 38 C.F.R. § 4.40 does not require a separate rating for pain, rather, provides guidance for determining ratings under other DCs assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). According to 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App 158 (2016), the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." But the spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veterans themselves, when a flare-up is not observable at the time of examination. Turning now to the relevant evidence, the Veteran underwent a VA lumbar spine examination in September 2016. During this examination, he had forward flexion of his lumbar spine to 70 degrees on initial range of motion testing, with no additional loss in range of motion during additional testing. He denied having flare-ups of pain, had full muscle strength, and there was no ankylosis. During his October 2019 hearing, the Veteran testified that he believed that his lumbar spine disability was worsening. As proof of this, he cited difficulty walking more than a couple of blocks, bending, and lifting things. Because he testified that his lumbar spine disability had worsened, as already mentioned the Board resultantly remanded this claim back to the RO (AOJ) in June 2020 to have him reexamined to reassess the severity of this service-connected disability. In July 2020, to this end, the Veteran underwent another VA lumbar spine examination. He denied flare-ups of pain but indicated that "doing a lot of lifting and bending and pushing a lawnmower exacerbates his low back pain." He further indicated that walking about a mile causes back pain. On initial range of motion testing, he had forward flexion to 56 degrees with pain. He estimated that, during repeated use over time, his forward flexion is less instead limited to 36 degrees with pain. Notably, however, although this represents a worsening of his lumbar spine disability in this extreme circumstance, this measurement of 36 degrees still is commensurate with his existing 20 percent rating because a higher 40 percent rating requires even greater restriction of his forward flexion namely, to 30 degrees or less. Thus, even worse case scenario, so even when considering repeated use of his low back over time (i.e., the type of situation contemplated in DeLuca, Mitchell, and their progeny, so including when his pain and other symptoms are most problematic), it still does not result in sufficient limitation of motion on forward flexion to warrant a rating higher than 20 percent. Moreover, this most recent examiner reaffirmed there is no ankylosis or IVDS, so also no alternative basis for assigning a rating higher than 20 percent. The Board consequently finds that the evidence of record persuasively weighs against a rating greater than 20 percent for the Veteran's lumbar spine disability. The Board acknowledges his lay reports of symptoms and that there is functional loss due to pain and limited motion. However, to reiterate, even considering his lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that his pain is caused by walking a mile or more, bending, and lifting, or his estimated range of motion after repeated use over time does not, in turn, result in limitation of motion more nearly approximating forward flexion of his thoracolumbar spine to 30 degrees or less or favorable ankylosis of his entire thoracolumbar spine. Consideration also has been given to instead assigning a rating under DC 5243, which, as mentioned, is the Formula for Rating IVDS Based on Incapacitating Episodes. However, it is worth repeating that the Veteran does not have IVDS, so a rating under this other DC is not warranted. Regarding any neurological impairment associated with (i.e., secondary to) the low back disability, this, too, was one of the reasons the Board remanded this claim in June 2020 because medical comment was needed to assist in making this important determination. However, the lay and medical evidence of record is against finding that the Veteran has any lower extremity neurological impairment associated with his lumbar spine (low back) disability. Specifically, the July 2020 VA examiner on remand found that the Veteran had no neurologic disability involving his lower extremities owing to his lumbar spine disability. Accordingly, the most probative evidence of record persuasively weighs against this claim of entitlement to a rating higher than 20 percent for this lumbar spine disability. And, as the most probative evidence of record persuasively weighs against this claim, the benefit-of-the-doubt rule does not apply since the evidence for versus against this claim is not in relative equipoise (meaning approximate or nearly equal balance). See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). REASONS FOR REMAND 2. Entitlement to service connection for a neurological disability of the left upper extremity, including secondary to the service-connected lumbar spine (low back) disability, is remanded. The Board's prior June 2020 remand directed the RO (AOJ) to have the Veteran undergo another lumbar spine examination including to obtain needed medical opinion concerning whether the Veteran has any neurological deficit or impairment of his left upper extremity secondary to his lumbar spine disability. To this end, the Veteran underwent this VA lumbar spine examination in July 2020. But unfortunately, the examiner did not comment on whether the Veteran has any left upper extremity neurological impairment owing to his lumbar spine disability. Instead, this examiner only indicated the Veteran has no lower extremity neurologic impairment owing to his lumbar spine disability. In this circumstance it is incumbent on this Board to obtain this needed additional medical comment before deciding the appeal of this claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (explaining that VA must ensure that an examination and opinion are adequate). Accordingly, this remaining claim is again REMANDED for the following still additional development and consideration: Obtain additional medical comment (i.e., an addendum or supplemental opinion) concerning whether the Veteran has any neurological deficit or impairment in his left upper extremity that is secondary to (meaning caused OR aggravated by) any service-connected disability including especially his lumbar spine (low back) disability but also his service-connected left shoulder disability. *The prior July 2020 VA compensation examiner only, instead, commented on whether there is any neurological impairment in the Veteran's lower extremities owing to his service-connected lumbar spine disability such as radiculopathy or sciatic neuropathy, etc., concluding there is not, but additional comment is still needed also addressing whether this is equally true for the Veteran's left upper extremity. Rationale for the opinion is essential. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Pak 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.