LOW BACK DISABILITY

MICHAEL MARTIN · 2023 · Case ID: 23068272

DENIED

Summary

The veteran, who served in the U.S. Army from October 1976 to April 1980, appeals the denial of an increased rating for his service-connected low back disability, which is currently rated at 40 percent under Diagnostic Code 5237. The veteran sought a rating in excess of 40 percent, arguing his condition met the criteria for a higher evaluation, potentially including an extraschedular rating. The Board reviewed the veteran's extensive claims history, focusing on retrospective VA examinations conducted in July 2023, which analyzed prior exams from May 2003, April 2009, May 2014, February 2017, and June 2021. The core issue was whether the veteran's low back disability constituted the functional equivalent of unfavorable ankylosis of the entire thoracolumbar spine or spine, which would warrant a higher rating. Multiple retrospective and contemporaneous examinations consistently found no functional ankylosis, even during reported flare-ups, as the veteran's range of motion did not meet the criteria for ankylosis or significant functional loss beyond the 40% rating. The Board also considered the request for an extraschedular rating, reviewing an advisory opinion that found the schedular criteria adequate to describe the veteran's disability picture, including pain and loss of range of motion, and that no exceptional factors warranted an extraschedular evaluation. Consequently, the Board denied the increased rating and the extraschedular evaluation, finding the evidence did not support a rating in excess of 40 percent.

Rationale

Multiple retrospective and contemporaneous examinations found no functional ankylosis.; Veteran's range of motion did not meet criteria for higher rating.; Schedular criteria adequately describe disability picture, precluding extraschedular rating.

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

5237

Docket No.

99-11 912

Full Decision Text

Citation Nr: 23068272
Decision Date: 12/29/23 Archive Date: 12/29/23

DOCKET NO. 99-11 912
DATE: December 29, 2023

ORDER

Entitlement to a rating in excess of 40 percent for a back disability, to include on an extraschedular basis is denied.

FINDINGS OF FACT

Throughout the appeal period, the Veteran's low back disability has been manifested by forward flexion of the thoracolumbar spine 30 degrees or less; unfavorable ankylosis of the entire cervical spine, or favorable ankylosis of the entire thoracolumbar spine.

The functional equivalent of unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine is not shown during the period on appeal.

CONCLUSION OF LAW

The criteria for a rating in excess of 40 percent, to include extraschedular for lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty in the United States Army from October 1976 to April 1980.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 1998 and November 2012 rating decision issued by a Department of Veterans Affairs Regional Office (RO).

As this case has a decades long procedural history, please note that a full review of the procedural history of this case is found in the December 2021 and March 2023 Board decisions. The Board will focus on the most recent remand for the sake of efficiency.

This matter was previously before the Board in March 2023 at which time it was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) for further development.

The Board previously remanded this claim in order to obtain a retrospective opinion about the Veteran's lumbar spine disability. The examiner was asked to consider whether or not the Veteran's lumbar spine disability has been productive of the functional equivalent of unfavorable ankylosis of the entire spine or entire thoracolumbar spine during any portion of the claims period, from December 1997. The examiner reviewed the claims file and all prior exams addressing the disability and provided a retrospective opinion on the matter. Therefore, the Board finds that substantial compliance with its prior remand directives has been met. See D'Aries, 22 Vet. App. at 105; Stegall, 11 Vet. App. at 271. Accordingly, the Board may proceed with adjudication.

Increased Rating for Lumbar Spine

Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007).

Additionally, the effective date of an award of increased compensation may be the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred, if an application for increase in compensation is received within one year from such date. See 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Specifically, the Veteran is only entitled to an effective date prior to the date of claim if an increase in his disability occurred during the year before he filed his claim. Gaston v. Shinseki, 605 F.3d 979, 982 (2010). The legislative purpose of 38 U.S.C. § 5110(b)(2) was to provide veterans a one-year grace period for filing a claim following an increase in a service-connected disability.
that an increase in disability had occurred, if an application for increase in compensation is received within one year from such date. See 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Specifically, the Veteran is only entitled to an effective date prior to the date of claim if an increase in his disability occurred during the year before he filed his claim. Gaston v. Shinseki, 605 F.3d 979, 982 (2010). The legislative purpose of 38 U.S.C. § 5110(b)(2) was to provide veterans a one-year grace period for filing a claim following an increase in a service-connected disability. See Gaston, 605 F.3d at 983. This is often referred to as the "one-year look back period."

The Board has reviewed all of the evidence in the Veteran's record. Although the Board is required to provide reasons and bases supporting its decision, there is no need to discuss each item of evidence in the record. The Board will summarize the pertinent evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence of record shows, or does not show, with respect to the claim. See Gonzalez v. West, 218 F.3d 1278, 1380-81 (Fed. Cir. 2000).

The Veteran seeks a higher rating for his lower back disability, which is rated 40 percent throughout the appeal period under Code 5237 for a low back disability pursuant to the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) at 38 C.F.R. § 4.71.

Under the General Rating Formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: 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, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. When determining the severity of musculoskeletal disabilities, which are at least partly rated on the basis of range of motion, VA must consider the extent of additional functional impairment a Veteran may have above and beyond the limitation of motion objectively demonstrated due to pain, limited or excess movement, weakness, incoordination, and premature or excess fatigability, etc., particularly when symptoms "flare up," to include periods of prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp v. Shulkin, 29 Vet. App. 26, 31-35 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). However, where a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997).

Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use.

In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "
is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use.

In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 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. 38 C.F.R. § 4.45.

Furthermore, the intent of the rating schedule is to recognize painful motion with joint or particular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis context, the Board should address its applicability.

As explained below, after review of the record and resolving all reasonable doubt in favor of the Veteran, the Board finds that; a rating in excess of 40 percent is not warranted at any time during the appeal period.

The July 2023 retrospective opinion found that the Veteran does not have and has not had the equivalent of functional ankylosis, including during flares, with or without the ameliorating effects of medication at any point during this appeal. In explaining this opinion, the examiner went through each of the prior exams that the Veteran underwent along with the Veteran's medical records and concluded at no point during the appeal period did the Veteran experience functional ankylosis.

The examiner in July 2023 stated at the time of the May 2003 exam, the Veteran reported his history of back pain with radiating features. The initial ROM was noted at 30° for flexion, 3° for extension, bilateral flexion at 20°, and bilateral at 20°. Flare ups were not specifically discussed, and the veteran used local heat, exercise, and walking to help manage his symptoms. The examiner opined that does not imply a loss of ROM due to flare. The veteran had at least 70 to 80° of flexion. The examiner notes that testing in 2003 did not show functional ankylosis and stated, "functional ankylosis cannot be unfavorable if motion is determined."

The July 2023 examiner also did not find the functional equivalent to ankylosis in 2009. At the time of the examination in April 2009, initial ROM was 0 to 35° for flexion and 0 to 5° for all remaining planes of motion. The findings for observed repetitive use and noted that flexion limited to 20°. At the time of the exam, the Veteran even stated that exercise lessened his symptoms. At the exam, the veteran had flexion less than 30°, at 20° after three observed repetitive motions. The Veteran did not exhibit functional ankylosis at that time and based upon the Veteran's statements, the only indication of flexion less than 30° was after the observed motions in the clinic.

In May 2014 the July 2023 examiner also did not find functional unfavorable ankylosis. Again, flare ups were denied specifically by the veteran. The initial ROM was 50° for flexion, 15° for extension, 20° for right flexion, and 15° for all other planes of
time of the exam, the Veteran even stated that exercise lessened his symptoms. At the exam, the veteran had flexion less than 30°, at 20° after three observed repetitive motions. The Veteran did not exhibit functional ankylosis at that time and based upon the Veteran's statements, the only indication of flexion less than 30° was after the observed motions in the clinic.

In May 2014 the July 2023 examiner also did not find functional unfavorable ankylosis. Again, flare ups were denied specifically by the veteran. The initial ROM was 50° for flexion, 15° for extension, 20° for right flexion, and 15° for all other planes of motion. A small loss was recorded in the appropriate section for observed repetitive use and for extended repetitive use over time. "Even conceding flares with or without the ameliorating effect of medication, the veteran did not have functional ankylosis or flexion less than or equal to 30° for this timeframe."

In February 2017 the examiner did not find unfavorable ankylosis. The veteran, when asked, denied flare ups. The 2023 examiner notes by this time the Veteran would be able to anticipate the question and therefore there were no flare ups or loss of ROM during flare ups at that time. Initial ROM was 70°, 10°, 25°, 20°, 30°, and 30° for the respective planes of motion with no additional loss on observed repetitive use. In addition to noting the lack of unfavorable ankylosis, the examiner reviewing the imaging over the course of the period on appeal noting little change in the spine from 2008. Therefore, there is no evidence suggesting functional ankylosis.

In June 2021, the Veteran reported flare ups. However, the examiner noted that the range of motion was near-normal. Flexion was noted 85°, extension in both lateral flexions spent 30°, right rotation at 20°, and left rotation at 15°, with no additional loss on observed repetitive use. There was a small loss of 5° in of motion with 80° for flexion, 25° extension and both lateral flexions, 15° for right rotation, and 10° for left rotation. The examiner stated that these do not equate with functional ankylosis.

The July 2023 examiner also included that the Veteran showed no neurologic involvement from the degenerative spine disease. In addition, the Veteran has no evidence of neurologic or gastrointestinal involvement due to nerve work secondary to the degenerative TLS disease. This includes alterations in the Veteran's scoliosis. Any neurologic compromise is already attributed to radiculopathy.

The examiner is concise and clear and reviewed all the evidence. The examiner is competent and credible to make these determinations and this opinion is assigned a high probative weight and persuasive weight.

Accordingly, even with consideration of the Veteran's more recent complaints of flare-ups and pain, the evidence does not show (or approximate) the functional equivalent of unfavorable ankylosis of the entire thoracolumbar spine to warrant the next higher 50 percent rating. As such, the evidence shows the Veteran's functional limitations do not meet the criteria for a rating in excess of 40 percent. See Sharp v. Shulkin, 29 Vet. App. 26, 31-35 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); see also 38 C.F.R. §§ 4.40, 4.45.

For all the foregoing reasons, the evidence is against a rating in excess of 40 percent at any time during the pendency of the claim for this disability. Hart v. Mansfield, 21 Vet. App. 505 (2007). There is no reasonable doubt to be resolved and the appeal as to a rating in excess to 40 percent for the Veteran's service-connected low back disability must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3.

Extraschedular Rating for Low Back Disability

The Board remanded the issue specifically for extraschedular evaluation for the Veteran in the December 2021 remand based upon the Veteran's multiple back disabilities included in the one rating criteria.

Extraschedular Rating for Low Back Disability

The Director of Compensation and Pension wrote an Advisory Opinion which considered whether an extraschedular rating referral is warranted for the service-connected lumbar spine disability for any part of the appeal period and rendered a negative opinion in January 2022. The Director reasoned that the VA examinations from 2017 and 2021, the most recent examinations, show an improvement in the Veteran's symptoms. See Advisory Opinion January 2022.The Director also stated that there was no impairment in/of earning capacity due to exceptional or unusual factors to marked interference with employment or frequent periods of hospitalization. Id. Therefore, an extraschedular rating was denied.

The Board has exercised its independent judgement and reaches the same conclusion as the Director. The Board also clarifies that it has reviewed all the evidence of record, to include all evidence added after the Director's and determines another referral is not necessary.

Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran's disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111.

In regard to the first element, comparison of the Veteran's symptoms and associated functional impairment does not show that the current rating criteria are inadequate to describe inadequate disability picture as this disability encompasses many lower back disabilities. The record shows that he has complaints and findings of pain, loss of range of motion, and radiating pain going down his left leg. Diagnostic Code 5237 does not specifically list all the Veteran's symptoms. The Veteran's pain radiating down his left leg is reasonably similar to his service-connected radiculopathy which was service-connected secondary to his lower back disability.

Additionally, for all musculoskeletal disabilities, the Rating Schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell, 25 Vet. App. at 37. For disabilities of the joints in particular, the Rating Schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss.

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Because the Rating Schedule was purposely designed to compensate for such functional effects of the Veteran's disabilities in all spheres of his daily life, including at work and at home, and given the variety of ways in which the Rating Schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture. The threshold issue under Thun is thus not met, and further consideration of an extraschedular rating is not warranted.

Martin T. Mitchell

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Alkhatib, Chelsea A.

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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