ANKLE IMPAIRMENT OF

MICHELLE L. KANE · 2024 · Case ID: A24077260

DENIED

Summary

The veteran, who served from September 2002 to September 2006, appeals the denial of service connection for a left ankle condition, hypertension secondary to lumbosacral strain, sleep apnea secondary to lumbosacral strain, and an increased rating for lumbosacral strain. The Board denied service connection for the left ankle, finding the evidence did not demonstrate a nexus to service, noting the absence of complaints in service treatment records and the veteran's failure to claim the condition until years after service. The Board also denied secondary service connection for hypertension and sleep apnea, finding the VA examiner's opinions that these conditions were less likely than not related to the service-connected lumbosacral strain to be adequate and probative. The veteran's lay opinions on causation were afforded no weight due to lack of medical expertise. For the increased rating claim for lumbosacral strain, the Board found that the veteran did not meet the criteria for a higher rating, specifically the absence of ankylosis or its functional equivalent, and that the evidence weighed against a higher rating. The Board also addressed procedural issues regarding the right to a hearing, finding any error in pre-decisional notice to be harmless.

Rationale

No nexus found between in-service ankle sprain and current condition; VA examiner's opinion found adequate and probative; Veteran's lay opinion afforded no probative weight due to lack of medical expertise; Evidence persuasively weighs against entitlement

Special Benefit

NO SPECIAL BENEFIT

Docket No.

220915-278434

Full Decision Text

Citation Nr: A24077260
Decision Date: 11/21/24 Archive Date: 11/21/24

DOCKET NO. 220915-278434
DATE: November 21, 2024

ORDER

Entitlement to service connection for left ankle condition is denied.

Entitlement to service connection for hypertension as secondary to lumbosacral strain is denied.

Entitlement to service connection for sleep apnea as secondary to lumbosacral strain is denied.

Entitlement to a rating in excess of 40 percent for lumbosacral strain is denied.

FINDINGS OF FACT

1. The weight of the evidence fails to demonstrate that the Veteran's left ankle condition manifested during service or is otherwise related to any in-service event, injury, or disease.

2. The Veteran's hypertension is not proximately due to or the result of his service-connected lumbosacral strain.

3. The Veteran's sleep apnea is not proximately due to or the result of his service-connected lumbosacral strain.

4. At no point did the Veteran's lumbosacral strain involve ankylosis or its functional equivalent.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for left ankle condition have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.309.

2. The criteria for entitlement to service connection for hypertension as secondary to lumbosacral strain have not been met. 38 U.S.C. §§ 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310.

3. The criteria for entitlement to service connection for sleep apnea as secondary to lumbosacral strain have not been met. 38 U.S.C. §§ 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310.

4. The criteria for entitlement to a rating in excess of 40 percent for lumbosacral strain have not been met. U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Code 5237.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 2002 to September 2006.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2022 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

In the September 2022 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the September 2022 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. No evidence has been submitted after the AOJ decision on appeal.

VA regulations provide that, "[u]pon request, a claimant is entitled to a hearing on any issue involved in a claim... before VA issues notice of a decision on an initial or supplemental claim." 38 C.F.R. § 3.103(d)(1). That regulation does not indicate that the claimant is entitled to pre-decisional notice of this optional hearing. In fact, 38 C.F.R. § 3.103(b)(1) provides that, following a decision, "[c]laimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief... [including] the right to a hearing on any issue involved in the claim as provided in paragraph (d) of this section...." Read together with § 3.103(d), the only notice § 3.103(b) requires is that a claimant be provided notice of the right for a hearing with notification of the decision (by definition, a post-decisional notice). In November 2022, VA amended VA Form 21-526EZ and in May 2024 VA amended VA Form 20-0995 to inform claimants of the right to a hearing at any time during the claims process. The claim in this appeal was filed on a VA Form 21-526EZ prior to the amended version. However, the Board finds that any
a hearing on any issue involved in the claim as provided in paragraph (d) of this section...." Read together with § 3.103(d), the only notice § 3.103(b) requires is that a claimant be provided notice of the right for a hearing with notification of the decision (by definition, a post-decisional notice). In November 2022, VA amended VA Form 21-526EZ and in May 2024 VA amended VA Form 20-0995 to inform claimants of the right to a hearing at any time during the claims process. The claim in this appeal was filed on a VA Form 21-526EZ prior to the amended version. However, the Board finds that any error in the failure to inform the Veteran of the right to a pre-decisional hearing before the RO was harmless error.

In Bowen, the Court found that when a claimant is denied a hearing before the RO, there is no due process violation if he is subsequently offered the opportunity for a hearing before the Board, even if a hearing was not requested or conducted, as long as there is no violation of due process concerning the Board hearing opportunity. Bowen v. Shinseki, 25 Vet. App. 250, 253-4 (2012). The facts in the case can be differentiated on several levels, to include that the Veteran did not actually request an RO hearing and the issue in Bowen was not one of notice. Regardless, the Board cannot find a basis to conclude that the underlying holding and logic of the Bowen case would not lead to the same finding of no prejudicial error under the procedure and facts of this case. The September 2022 notification letter included VA Form 20-0998, Your Right to Seek Review of Our Decision, outlining the Veteran's appeal options, to include a hearing before the Board. Additionally, in the September 2022 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran was provided with an option to request a hearing with a Veterans Law Judge. The Veteran instead selected Direct Review by a Veterans Law Judge, and the form explicitly states that by choosing this option, the Veteran does not want a Board hearing. Because the Veteran was provided with notice of the right to appeal to the Board, as well as the right to a Board hearing, there was no due process violation in the processing of the claim or any suggestion that the Veteran was prejudiced by the failure of VA to provide a hearing at the RO level. See Bowen.

Under certain circumstances, a claim for a total disability rating based on unemployability (TDIU) may be inferred as part of an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). The facts of this case do not raise the issue. The Veteran has not contended, nor does the record raise, that his service-connected lumbosacral strain prevents him from obtaining and maintaining substantially gainful employment. The record shows that the Veteran has been employed during the appeal period. Thus, there is no inferred TDIU claim.

1. Entitlement to service connection for left ankle condition

The Veteran seeks service connection for a left ankle condition, that the Veteran contends is related to an in-service injury. See June 2022 VA Form 21-526EZ Application for Disability Compensation and Related Compensation Benefits.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Generally, service connection for a disability requires competent evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a causal relationship or nexus between the current disability and any injury or disease during service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009).

The Veteran's service treatment records (STR) show that at his May 2002 entrance examination, he did not have a left ankle condition. A January 2005 treatment note shows that the Veteran twisted his left ankle while running, resulting in pain, swelling, and a bruise. The Veteran was diagnosed with a left ankle sprain. At his July 2006 separation examination, the Veteran did not report a left ankle condition.

The Veteran's VA treatment records do not note any complaints of a left ankle condition. As part of a claim for service connection for a right ankle condition, the Veteran presented for a VA examination in February 2017. On examination, the Veteran's left ankle had normal range of motion with no pain.

The Veteran presented for a VA examination for his left ankle in
his May 2002 entrance examination, he did not have a left ankle condition. A January 2005 treatment note shows that the Veteran twisted his left ankle while running, resulting in pain, swelling, and a bruise. The Veteran was diagnosed with a left ankle sprain. At his July 2006 separation examination, the Veteran did not report a left ankle condition.

The Veteran presented for a VA examination for his left ankle in June 2022. The examiner noted a diagnosis of lateral collateral ligament sprain of the left ankle. The Veteran reported that his condition began in 2005 due to twisting his ankle while running. The Veteran reported monthly flare ups that last several days. On range of motion (ROM) testing, the Veteran had normal plantar flexion at 45 degrees, and abnormal dorsiflexion at 15 degrees. The Veteran's ROM did not change on passive ROM or repetitive use testing. Regarding functional impact, the examiner noted that the Veteran would have difficulty standing or walking more than 60 minutes due to pain. The examiner opined that the Veteran's left ankle condition was less likely than not incurred in or caused by the Veteran's in-service left ankle sprain. Noting a review of the Veteran's medical records, as well as the examination results, the examiner wrote that there was no chronicity and, thus, a nexus could not be established.

The Board finds the June 2022 VA medical opinion to be adequate and probative, as it is based on review of the claims file, reflects consideration of the Veteran's prior medical history, and includes detailed rationale in support of its conclusions.

The Board recognizes the Veteran's sincere belief that his left ankle disability is due to service. However, he is not competent to determine that his disability is related to any in-service event, as he has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or opinion as to medical causation. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007). As such, his opinion as to etiology is afforded no probative weight, and the Board gives more probative weight to the competent medical evidence. The Board affords the June 2022 VA medical opinion, which found no nexus between the Veteran's in-service left ankle sprain and his current left ankle condition, significant probative weight.

The Veteran has not explicitly asserted continuous symptoms since the in-service ankle sprain; however, assuming he is, those assertions are not credible. First, he did not report any continuing ankle symptoms when he underwent his separation examination approximately 18 months after the sprain. Second, although he filed claims for VA compensation in 2007, he did not claim the ankle at the time. While there is no requirement a claim be filed within a certain time period, the fact he requested compensation for other disabilities, but not the left ankle, is probative evidence he did not have a left ankle condition at that time he felt was related to service. More importantly, though, in 2016, he did file a claim for the right ankle, but not the left. It is reasonable to assume that he would have claimed both ankles, if, in fact, they were both causing symptoms at that time. Finally, the file contains his VA records from 2016 to 2022, and they do not show any complaints concerning the left ankle. The fact he was receiving medical care, including for other orthopedic conditions, yet did not raise any concerns about the left ankle weighs against any assertion he has had such a condition since service.

For the above reasons, the evidence persuasively weighs against entitlement to service connection for a left ankle disability. As the evidence is neither evenly balanced nor approximately so, the benefit of the doubt doctrine does not apply. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). For these reasons, the claim is denied.

2. Entitlement to service connection for hypertension

The Veteran seeks service connection for hypertension, which he contends is secondary to his service-connected lumbosacral strain. See June 2022 VA Form 21-526EZ Application for Disability Compensation and Related Compensation Benefits. He claims his back pain has caused his blood pressure to rise steadily over the years, leading to hypertension. The Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection for hypertension. The condition was diagnosed more than a decade after service, and he has
doctrine does not apply. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). For these reasons, the claim is denied.

2. Entitlement to service connection for hypertension

The Veteran seeks service connection for hypertension, which he contends is secondary to his service-connected lumbosacral strain. See June 2022 VA Form 21-526EZ Application for Disability Compensation and Related Compensation Benefits. He claims his back pain has caused his blood pressure to rise steadily over the years, leading to hypertension. The Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection for hypertension. The condition was diagnosed more than a decade after service, and he has not alleged any in-service elevated blood pressure readings. Therefore, the Board's adjudication will consider only entitlement to secondary service connection.

Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310.

Initially, the Board notes that the Veteran has a current diagnosis of hypertension. The Board also notes that the Veteran is service connected for lumbosacral strain. A review of the Veteran's VA treatment records shows that the Veteran has a diagnosis of hypertension and uses an at-home blood pressure monitor.

The Veteran was afforded a VA examination for his hypertension in June 2022. The Veteran reported the onset of his condition in 2018, and that he was taking Losartan and Amlodipine for his high blood pressure. The examiner took the Veteran's blood pressure readings, which were 142/80, 144/78, and 144/70. The examiner noted that the Veteran did not have a history of diastolic blood pressure elevation to predominantly 100 or more, or any other pertinent physical findings, complications, conditions, signs, or symptoms related to his hypertension. The examiner noted no functional impact on the Veteran's ability to work due to his hypertension. The examiner opined that the Veteran's hypertension was less likely than not proximately due to or the result of his service-connected lumbosacral strain. Noting a review of the Veteran's medical records, as well as the examination, the examiner wrote that there was no information in the relevant documents to indicate the Veteran developed hypertension as a result of his lumbosacral strain, and that there is no evidence in medical literature to suggest that lumbosacral strain causes hypertension.

The Board recognizes the Veteran's sincere belief that his hypertension is due to his service-connected lumbosacral strain. However, he is not competent to determine that his hypertension is related to any service-connected disability, as he has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or opinion as to medical causation. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007). As such, his opinion as to etiology is afforded no probative weight, and the Board gives more probative weight to the competent medical evidence. The Board affords the June 2022 VA medical opinion, which found no nexus between the Veteran's service-connected lumbosacral strain and his hypertension, significant probative weight.

For the above reasons, the evidence persuasively weighs against entitlement to service connection for hypertension. As the evidence is neither evenly balanced nor approximately so, the benefit of the doubt doctrine does not apply. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). For these reasons, the claim is denied.

3. Entitlement to service connection for sleep apnea

The Veteran seeks service connection for sleep apnea, which he contends is secondary to his service-connected lumbosacral strain. See June 2022 VA Form 21-526EZ Application for Disability Compensation and Related Compensation Benefits. He claims because of his back pain, he cannot sleep comfortably, and he has had to use medication to help him sleep. The Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection for sleep apnea. The Veteran has not alleged any relevant in-service symptoms, and the condition was diagnosed more than a decade after service. Therefore, the Board's adjudication will consider only entitlement to secondary service connection.

Initially, the Board notes that the Veteran has a current diagnosis of sleep apnea. The Board also notes that the Veteran is service connected for lumbosacral strain. VA treatment records show that
. See June 2022 VA Form 21-526EZ Application for Disability Compensation and Related Compensation Benefits. He claims because of his back pain, he cannot sleep comfortably, and he has had to use medication to help him sleep. The Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection for sleep apnea. The Veteran has not alleged any relevant in-service symptoms, and the condition was diagnosed more than a decade after service. Therefore, the Board's adjudication will consider only entitlement to secondary service connection.

Initially, the Board notes that the Veteran has a current diagnosis of sleep apnea. The Board also notes that the Veteran is service connected for lumbosacral strain. VA treatment records show that in January 2022, the Veteran complained of snoring and waking up unrefreshed. In March 2022, the Veteran was diagnosed with obstructive sleep apnea after undergoing a sleep study.

The Veteran was afforded a VA examination for his sleep apnea in June 2022. The examiner noted a diagnosis of obstructive sleep apnea, which the Veteran reported onset in 2016 with snoring and difficulty sleeping. The Veteran required use of a continuous positive airway pressure (CPAP) machine and endorsed persistent daytime hypersomnolence. He did not have any other pertinent physical findings, complications, conditions, signs, or symptoms related to his sleep apnea. Noting a review of the Veteran's medical records, as well as the examination, the examiner wrote that there was no information in the relevant documents to indicate the Veteran developed sleep apnea as a result of his lumbosacral strain, and that there is no evidence in medical literature to suggest that lumbosacral strain causes sleep apnea. The examiner wrote that sleep apnea is typically caused by being overweight.

In light of the June 2022 VA examiner's discussion of obesity as a cause of sleep apnea, the Board has considered whether secondary service connection for sleep apnea via obesity as an intermediary step has been reasonably raised by the record; however, the Board finds that it has not. The Board's duty to address a reasonably raised theory of service connection arises when the evidence triggers VA's duty to provide a medical opinion. Healey v. McDonough, 33 Vet. App. 312, 319 (2021).

The Board observes that obesity is not considered a disease for purposes of VA benefits. See VAOPGCPREC 1-2017 (holding the "longstanding policy of [VA], that obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 and therefore may not be service connected on a direct basis, is consistent with title 38, United States Code" and "[o]besity per se is not a 'disability' for purposes of 38 C.F.R. § 3.310 "). However, although obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131, and therefore may not be service-connected on a direct or secondary basis, obesity may be an "intermediate step" between a service-connected disability and a current disability that may be connected on a secondary basis (1) if a previously service-connected disability caused him to become obese; (2) that obesity was a substantial factor in causing secondary disability; and (3) the secondary disability would not have occurred but for the obesity. See VAOPGCPREC 1-2017.

In Garner v. Tran, 33 Vet. App. 241 (2021), the Court concluded that in order to reasonably raise the theory of secondary service connection via obesity as an intermediate step, there must be some evidence in the record that draws an association or suggests a relationship between the veteran's obesity, or weight gain resulting in obesity, and a service-connected disability. Conversely, the Court determined that incidental references to obesity, or weight gain resulting in obesity, are insufficient to reasonably raise this theory of entitlement. In that decision, the Court also provided a list of six non-exhaustive considerations that could give rise to a reasonably raised theory of secondary service connection with obesity as an intermediate step: mobility limitations or reduced physical activity as a result of a service-connected physical disability (in particular, orthopedic conditions or chronically painful conditions); reduced physical activity or inability to follow a course of exercise or diet as a result of service-connected mental disability; side effects of medication (e.g., weight gain), where the medication is prescribed for a service connected disability; treatise evidence suggesting a connection between all or some
disability. Conversely, the Court determined that incidental references to obesity, or weight gain resulting in obesity, are insufficient to reasonably raise this theory of entitlement. In that decision, the Court also provided a list of six non-exhaustive considerations that could give rise to a reasonably raised theory of secondary service connection with obesity as an intermediate step: mobility limitations or reduced physical activity as a result of a service-connected physical disability (in particular, orthopedic conditions or chronically painful conditions); reduced physical activity or inability to follow a course of exercise or diet as a result of service-connected mental disability; side effects of medication (e.g., weight gain), where the medication is prescribed for a service connected disability; treatise evidence suggesting a connection between all or some combination of obesity, service-connected disability, and the claimed condition; lay statements by a veteran attributing weight gain or obesity to the service-connected disability; and statements by treating physicians or medical examiners attributing weight gain or obesity to the service-connected disability.

Although there are numerous references to the Veteran's obesity in his treatment records, there is no evidence attributing his obesity to his service-connected lumbosacral strain, chronic left knee pain, status post gunshot wound residuals of the right knee and posterior and anterior thigh muscles and hamstring muscles, and there is no evidence contemplated by the Court's six non-exhaustive considerations suggesting a link between obesity and the Veteran's service-connected conditions. The June 2022 examiner did not suggest that any of the Veteran's service-connected disabilities resulted in reduced physical activity, inability to follow a course of exercise, medication with side effects of weight gain, or any other side effect or restriction that could suggest a relationship between these conditions and obesity. As such, the Board finds that secondary service connection via obesity as an intermediate step is not reasonably raised by the record.

The Board recognizes the Veteran's sincere belief that his sleep apnea is due to his service-connected lumbosacral strain. However, he is not competent to determine that his sleep apnea is related to any service-connected disability, as he has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or opinion as to medical causation. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007). As such, his opinion as to etiology is afforded no probative weight, and the Board gives more probative weight to the competent medical evidence. The Board affords the June 2022 VA medical opinion, which found no nexus between the Veteran's service-connected lumbosacral strain and his sleep apnea, significant probative weight.

For the above reasons, the evidence persuasively weighs against entitlement to service connection for sleep apnea. As the evidence is neither evenly balanced nor approximately so, the benefit of the doubt doctrine does not apply. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). For these reasons, the claim is denied.

4. Entitlement to a rating in excess of 40 percent for lumbosacral strain

For increased rating appeals within the AMA system, the appeal period is limited up to the date of the AOJ decision. The Veteran applied for a higher rating for his service-connected lumbosacral strain on June 1, 2022, resulting in the September 13, 2022, rating decision on appeal. Accordingly, the period on appeal is June 1, 2022, to September 13, 2022. The Board will generally review evidence from that period and during the one year "look back period" preceding the submission of the claim. See 38 U.S.C. § 5110 (b); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010).

Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned
life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3.

The Veteran seeks an increased rating for his lumbosacral strain, which is evaluated under Diagnostic Code 5237.

Diagnostic Code 5237, which compensates for lumbosacral or cervical strain, is evaluated under the General Rating Formula for Diseases and Injuries of the Spine, and the current rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The next highest rating of 50 percent is warranted for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent rating, the highest schedular rating, is warranted for unfavorable ankylosis of the entire spine.

For VA compensation purposes, 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. 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 combined range of motion of the thoracolumbar spine is 240 degrees. 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. Id. at Note (2). See also 38 C.F.R. § 4.71a, Plate V.

Further, 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. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). In Chavis, the United States Court of Appeals for Veteran's Claims (Court) noted that the rating criteria define ankylosis in terms of limitation of motion. Chavis v. McDonough, 34 Vet. App. 1, 11 (2021) (ankylosis is a condition in which the spine or a spinal segment is fixed in flexion or extension). Essentially, ankylosis contemplates "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012); see also Villareal v. Principi, 18 Vet. App. 13 (2001) (defining ankylosis to mean that "a joint is fixed, or 'frozen' in one position.").

The Veteran was afforded a VA examination for his back in June 2022, where he reported low back pain that he treats with Ibuprofen, Cyclobenzaprine, and Lidocaine patches. He reported flare ups. He stated that he has difficulty with bending, twisting, prolonged standing, and heavy lifting. On examination, he had abnormal ROM, with forward flexion at 60 degrees, and extension, right and left lateral flexion, and right and left lateral rotation all at 20 degrees, with pain on forward flexion. The Veteran's ROM remained the same on repetitive use testing. The examiner estimated on repeated use over time and flare ups, the Veteran's forward flexion would be at 50 degrees, and extension, right and left lateral flexion
for his back in June 2022, where he reported low back pain that he treats with Ibuprofen, Cyclobenzaprine, and Lidocaine patches. He reported flare ups. He stated that he has difficulty with bending, twisting, prolonged standing, and heavy lifting. On examination, he had abnormal ROM, with forward flexion at 60 degrees, and extension, right and left lateral flexion, and right and left lateral rotation all at 20 degrees, with pain on forward flexion. The Veteran's ROM remained the same on repetitive use testing. The examiner estimated on repeated use over time and flare ups, the Veteran's forward flexion would be at 50 degrees, and extension, right and left lateral flexion, and right and left lateral rotation all at 20 degrees. The Veteran had muscle spasms resulting in abnormal gait or abnormal spine contour. Muscle strength, reflexes, and sensation were all normal. He did not have radiculopathy, ankylosis, or any other neurologic abnormalities. He did not have intervertebral disc syndrome (IVDS). Regarding functional impact, the examiner noted that the Veteran would have difficulty bending, standing for more than 60 minutes, and lifting more than 40 pounds due to pain in an occupational setting.

After review of the evidence, the Board finds that a rating higher than 40 percent for service-connected lumbosacral strain is not warranted. As noted above, a rating higher than 40 percent requires unfavorable ankylosis of the entire thoracolumbar spine, or unfavorable ankylosis of the entire spine. The June 2022 VA examiner did not observe either favorable or unfavorable ankylosis, nor did they observe his spine in any specific fixed position. As a whole, the Veteran has not reported any symptoms comparable to ankylosis, such as those listed in Note (5) of the General Rating Formula, and he has not endorsed his back being locked, frozen, or fixed in any position for any amount of time. A review of the Veteran's VA treatment records notes no symptoms comparable to ankylosis. Instead, the Veteran has exhibited pain and limited ROM.

In making the above findings, the Board is cognizant of the fact that the Veteran has used medication to treat his back pain. The Court has held that in assigning a disability rating, VA may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56 (2012). Here, however, there is no competent medical opinion, or other competent evidence, demonstrating that he would meet additional criteria for a higher rating but for the use of such medication.

Finally, the General Rating Formula for Diseases and Injuries of the Spine also provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, will be evaluated separately, under an appropriate diagnostic code. There is no indication in the file of any bowel or bladder impairment, and the June 2022 VA examination noted no neurological impairments or findings related to the Veteran's lumbosacral strain, to include radiculopathy.

As such, the Board finds that the lumbosacral strain is best approximated by his existing 40 percent rating. As the evidence weighs persuasively against a finding that a higher rating is warranted for the Veteran's lumbosacral strain, there is no benefit of the doubt to resolve in the Veteran's favor. Accordingly, the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

MICHELLE L. KANE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Dorsey, J.T.

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.

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