Citation Nr: 1619723 Decision Date: 05/16/16 Archive Date: 05/27/16 DOCKET NO. 10-08 785 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a disability rating higher than 10 percent for lumbosacral strain. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Alexander Panio, Associate Counsel INTRODUCTION The Veteran served on active duty from June 2000 to October 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In May 2014 the Board remanded this case for further development. The case has returned to the Board for appellate review. FINDINGS OF FACT Throughout the course of the appeal period, even considering the Veteran's pain and corresponding functional impairment, his lumbosacral strain was not productive of: ankylosis; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; associated objective neurologic abnormalities; limitation of forward flexion of the lumbar spine to 60 degrees or less; or limitation of combined lumbar motion to 120 degrees or less. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for lumbosacral strain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.71a Diagnostic Code 5237 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background The Veteran was granted service connection for lumbosacral strain in a February 2007 rating decision, and a 10 percent rating was assigned under Diagnostic Code 5237. The Veteran did not file a notice of disagreement with the February 2007 rating decision and no new and material evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. Thus, the February 2007 rating decision became final based on the evidence then of record. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. § 20.1105. In the May 2009 decision currently on appeal, the RO continued the Veteran's rating at 10 percent. The Veteran contends that a higher rating is warranted based on the severity of his symptomatology. Specifically the Veteran has argued that he has been diagnosed with levoscoliosis and that consideration should be given to active and inactive periods of disability. The Veteran has stated that he performs daily stretching and exercises due to his condition and takes NSAIDS. The evidence of record does not indicate that the Veteran is currently unemployed and he has not asserted that his disability makes him unemployable. The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that "absent extraordinary circumstances . . . we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran . . ." Scott v. McDonald,789 F.3d 1375 (Fed. Cir. 2015). Here the Veteran has not advanced any procedural arguments. II. Law Disability evaluations are determined by the application of a schedule of ratings disabilities that is based on the average impairment of earning capacity resulting from a service-connected disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. While the regulations require review of the recorded history of a disability, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and degree of his recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, 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. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 30 percent disability rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a. 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; DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, pain by itself does not constitute a functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. See id. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Generally, painful motion is deemed to warrant the minimum compensable rating for a joint, even if there is no actual limitation of motion. See Petitti v. McDonald, 27 Vet. App. 415 (2015); Burton v. Shinseki, 25 Vet. App. 1 (2011). III. Analysis The appeal period before the Board is from February 2008, the date VA received the claim for increased rating, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). An April 2009 MRI of the Veteran's lumbar spine showed thoracolumbar levoscoliosis, spondylosis and disc bulge at L1-2 and disc bulge with facet arthropathy at L4-5. At a May 2009 VA examination the Veteran reported worsening low back pain. No history of fatigue or decreased motion was reported but the Veteran did report stiffness, weakness, spasms, severe non-radiating pain occurring 1-6 days per week and lasting hours. The Veteran reported being able to walk 1-3 miles and having 10-14 "incapacitating episodes" lasting for hours over the previous year. On examination no objective neurologic abnormalities, bowel or bladder impairment, kyphosis, list, lumbar flattening, lordosis, scoliosis, reverse lordosis, spasms, atrophy, guarding, pain on motion, tenderness, or weakness were observed. Strength, sensation and reflexes were all found to be normal. Posture, gait and symmetry were noted to be normal. The Veteran was capable of flexion to 75 degrees, extension to 30 degrees, and full lateral flexion and rotation bilaterally. Pain was noted on motion but no additional limitation of motion was found after three repetitions. The examiner opined that the Veteran would suffer mild effects on some activities of daily living including chores, shopping and recreation and moderate effects to exercise and sports. Overall the examiner opined that the Veteran's condition was mild to moderate. In August 2009 the Veteran reported an exacerbation of the condition including increased pain and tenderness for several days following lifting either furniture or a child. X-rays of the Veteran's lumbar spine were normal and muscle pain was the most likely cause. The Veteran was reportedly able to continue working during this period. A February 2013 MRI of the Veteran's spine showed minimal loss of height and hydration present at the T12-L1 level consistent with mild degenerative disc disease. No other bone or disc abnormalities are noted and there was no evidence of spinal or foraminal stenosis. No scoliosis was noted. In July 2014 the Veteran underwent a second VA examination for his lumbar spine where he reported back pain since service. No flare-ups were reported. Testing showed the Veteran to be capable of full range of flexion, extension and lateral rotation and extension with no objective evidence of pain and no limitation of motion following repetition. Localized tenderness to the mid-back was noted but no spasms or guarding were detected. Strength, sensation and reflexes were all normal and no radiculopathy, ankylosis, Intervertebral Disc Syndrome (IVDS), or neurological abnormalities were detected. The examiner opined that there would be no impact on work and no functional loss due to the condition. Based on the evidence of record the Board finds that a disability rating in excess of 10 percent is not warranted for the Veteran's lumbar strain. The record does not show ankylosis, or neurological abnormalities. Objective range of motion testing in May 2009 and July 2014 both show the Veteran to be capable of forward lumbar flexion to more than 60 degrees and capable of combined range of thoracolumbar motion greater than 120 degrees. The Veteran reported pain, stiffness, weakness, spasms and incapacitating episodes at his 2009 examination but he was found to have full strength, no muscle spasms and nearly full range of motion. The Veteran was somewhat improved by his 2014 VA examination, which showed little if any functional impact from his disability. In total the evidence reflects no more than mild functional impacts throughout the appeal period and no problems with stability, standing or weight bearing. Moreover, the Veteran does not report that his disability has worsened since his most recent VA examination. The Veteran maintains that his April 2009 MRI indicates the presence of scoliosis and that this warrants a higher rating. However, those findings have not been shown on subsequent x-rays or MRI. Even if scoliosis were demonstrated by the record, the requirement for a higher rating is the presence of muscle spasms or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis. Although the Veteran reported spasms at his 2009 VA examination, there was no objective evidence of spasms at either examination and no abnormal gait or abnormal spinal contour have been noted outside of the 2009 MRI. The Veteran has further contended that his examination should occur during an active phase of his disability and cites Ardison v. Brown, 6 Vet.App 405, 407 (1994), in support of this contention. However, the disability in Ardison was distinguishable in that it was a skin condition that was in remission during the associated VA examination but caused several months of unemployment when active. Here, the Veteran has not indicated flare-ups lasting more than a few hours and except for a period of several days in August 2009, has not differentiated the symptomatology of what could be considered an active versus a passive phase of the condition. Moreover, as the Veteran's employment has not been shown to have been impacted, the Veteran's back condition is further distinguishable from the skin condition in Ardison. See Voerth v. West, 13 Vet. App. 117, 122-23 (1999) (holding Ardison inapplicable where the disability, in its recurrent state, did not affect the Veteran's earning capacity and the worsened condition did not last more than a few days). For the reasons set forth above, the preponderance of the evidence is against a finding that the Veteran's lumbar strain warrants a disability rating in excess of 10 percent. Accordingly, a higher rating is denied. In reaching this conclusion the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER A disability rating in excess of 10 percent for lumbosacral strain is denied. ____________________________________________ Steven D. Reiss Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs