Citation Nr: 1751077 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 16-53 481 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to a rating in excess of 40 percent for discogenic disease of the lumbar spine with strain (low back disability). REPRESENTATION Veteran represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD Ben Winburn, Associate Counsel INTRODUCTION The Veteran had active military service from November 1974 to March 1980 and from October 1980 to December 1987. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. FINDINGS OF FACT The Veteran's low back disability is manifested, at worst, by forward flexion to 70 degrees. There is no evidence of ankylosis. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for a low back disability have not been met. 38 U.S.C.A § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Historically, the Veteran was rated under 38 C.F.R. §§ 4.71(a), Diagnostic Code 5292 (2002) for severe limitation of motion of the lumbar spine, rated 40 percent disabling. This represented the maximum schedular rating under the historical code. The Board notes that the regulations used to evaluate diseases and injuries of the spine were revised, including the renumbering of the Diagnostic Codes, effective September 26, 2003. See 38 C.F.R. § 4.71a (Diagnostic Codes 5290-5295)(2003); 38 C.F.R. § 4.71a (Diagnostic Codes 5235-5243)(2017). Following the September 2003 Amendments, the Veteran's low back disability would now be rated under 38 C.F.R. § 4.71(a), Diagnostic Code 5237 (2017) for lumbosacral strain, which contemplates schedular ratings up to and including a 100 percent rating. The Board notes that ratings in excess of 40 percent for lumbosacral strain are allowed for low back disabilities that exhibit unfavorable ankylosis of the entire thoracolumbar spine, rated at 50 percent disabling; and unfavorable ankylosis of the entire spine, rated at 100 percent disabling. Higher ratings are also warranted according to the formula for rating Intervertebral Disc Syndrome (IVDS); however, as the Veteran has not been diagnosed with IVDS those criteria are not for consideration. The Board further notes that the Veteran was first granted entitlement to service connection for a low back disability with a 40 percent disability rating effective December 1987. The Board notes that a disability which has been continuously rated at or above any evaluation for 20 or more years cannot be reduced except upon a showing that such rating was based on fraud. 38 C.F.R. § 3.951(b) (2017). As there is no showing of fraud, the Veteran's 40 percent disability rating cannot be reduced. At a July 2014 VA examination, the Veteran reported constant low back pain since his initial injury during active service in 1975. The examination report detailed the Veteran's low back disability history since the January 1990 VA examination, showing progressive lumbar disc herniation, degenerative spondylosis, and spinal stenosis. The Veteran reported flare-ups that impact back function that were commonly aggravated by damp weather and prolonged sitting and/or standing. On physical examination, the Veteran's initial range of motion (ROM) measurements were as follows: forward flexion to 70 degrees with pain at termination, extension to 10 degrees with pain at termination, right lateral flexion to 15 degrees with pain at termination, left lateral flexion to 15 degrees with pain at termination, right lateral rotation to 5 degrees with pain at 0 degrees, and left lateral rotation to 25 degrees with no objective evidence of painful motion, with the Veteran's combined ROM equaling 140 degrees. ROM measurements after repetitive-use testing were as follows: forward flexion to 70 degrees, extension to 10 degrees, right lateral flexion to 15 degrees, left lateral flexion to 25 degrees, right lateral rotation to 5 degrees, and left lateral rotation to 25 degrees. The examiner noted the Veteran did not have any additional limitation in ROM following repetitive-use testing nor any functional loss and/or impairment of the thoracolumbar spine. The examiner noted localized tenderness or pain on palpation as extreme TTP bilateral lower lumbar paravertebral and flattening of the lumbar spine. The Veteran was noted to have muscle spasm resulting in abnormal gait or abnormal spinal contour, but no guarding of the spine. Muscle strength testing, reflex examination, sensory examination, and straight leg raise testing were all normal. The examiner noted involvement of L4/L5/S1/S2/S3 sciatic nerve roots with radiculopathy symptoms of mild numbness in the right and left lower extremities. The examiner observed no ankylosis of the spine. The Veteran was shown to have no other neurologic abnormalities and no intervertebral disc syndrome. The examiner noted the Veteran did not use an assistive device for locomotion. Diagnostic imaging was performed for the Veteran's spine and arthritis was documented. The Veteran did not have a thoracic vertebral fracture with loss of 50 percent or more of height. Notably, the examination report detailed two significant diagnostic test findings: a January 2011 CT Scan showing multilevel degenerative spondylosis at L4-L5 and L5-S1 where disc herniation resulted in significant compressive effect; and a January 2012 MRI showing L4-L5 disc herniation with moderate to severe impacts, L5-S1 disc herniation and annular tear with mild stenosis and moderate degeneration, L3-L4 mild to moderate stenosis, and T11-T12 disc extrusion with slight flattening of the spinal cord. The most recent findings noted in the examination report were from March 2013 x-rays that showed unchanged multilevel spondylotic changes; unchanged degenerative changes in the lower lumbosacral spine; mild generalized bony structure osteopenia; and no acute fracture or subluxation. At an April 2016 VA examination, the Veteran reported limitation of movement of his back, and pain with walking. Although it was noted that he had previously undergone a lumbar epidural steroid injection (LESI) to manage his low back pain, he stated his pain had become more severe. The Veteran's medical history involved a low back injury in 1975 that resulted in recurrent low back pain with no radiation down the legs. On physical examination, the Veteran's initial ROM measurements were as follows: forward flexion to 70 degrees, extension to 10 degrees, right lateral flexion to 15 degrees, left lateral flexion to 20 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 15 degrees, with the Veteran's combined ROM equaling 160 degrees. The examiner noted that the ROM itself did not contribute to a functional loss and while pain was noted on exam, it too did not result in or cause functional loss. There was no evidence of pain on weight bearing and no objective evidence of localized tenderness or pain on palpation of the joints or soft tissue. The Veteran was able to perform repetitive use testing with no loss of function or ROM after three repetitions. The examiner confirmed the Veteran was being examined immediately after repetitive use over time, and that pain, weakness, fatigability, and incoordination did not significantly limit functional ability. The Veteran did not exhibit guarding or muscle spasm, and muscle strength testing, reflex examination, sensory examination, straight leg raise testing were all normal. The examiner noted involvement of L4/L5/S1/S2/S3 sciatic nerve roots with radiculopathy symptoms of mild numbness in the right and left lower extremities. No ankylosis was present on examination. The examiner reported no other neurologic abnormalities. The Veteran did not have intervertebral disc syndrome (IVDS) nor did he use assistive devices for locomotion. Diagnostic imagining studies were reported with documented arthritis present and no thoracic vertebral fracture with loss of 50 percent or more of height was observed. A February 2015 MRI of the lumbar spine showed a redemonstration of chronic herniated discs at multiple levels with facet hypertrophy, spinal canal and bilateral neural foraminal stenosis. There was no significant interval change in the appearance of the likely herniated disc at T11-T12. The examiner noted the Veteran's low back disability functionally impacted his ability to work by limiting walking and standing. The Board finds that a rating in excess of 40 percent is not warranted at any point beginning on April 25, 2014, as the medical evidence of record shows that the Veteran's lumbosacral spine has never been ankylosed, either favorably or unfavorably. With regard to establishing loss of function due to pain, the provisions of the general rating schedule for spinal disorders are controlling whether or not there are symptoms of pain, and irrespective whether the pain radiates. While both the July 2014 and April 2016 VA examiners reported pain on motion, there is no indication that pain, due to disability of the back, caused functional loss greater than that contemplated by the current 40 percent rating. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995) ); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Were the Veteran's disability rating not protected by 38 C.F.R. § 3.951, a proposed reduction would be warranted. Per the July 2014 VA examination, the Veteran's low back disability would warrant a 20 percent rating based on muscle spasm severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Per the April 2016 VA examination, the Veteran's low back disability would warrant a 10 percent rating based on forward flexion greater than 60 degrees but not greater than 85 degrees and the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees. However, as noted above, the Veteran's current 40 percent rating cannot be reduced. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher schedular rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to a rating in excess of 40 percent for a low back disability is not warranted. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a rating in excess of 40 percent for a low back disability is denied. ____________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs