Citation Nr: 1753769	
Decision Date: 11/24/17    Archive Date: 12/01/17

DOCKET NO.  14-04 883	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to an initial compensable rating beginning May 12, 2004, for a lumbar spine disability.  


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

A.Spigelman, Associate Counsel


INTRODUCTION

The Veteran had active air service from April 1963 to January 1968.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  


FINDING OF FACT

Prior to November 2, 2010, the Veteran's lumbar spine disability was manifested by localized tenderness not resulting in abnormal gait or abnormal spinal contour.  


CONCLUSION OF LAW

The criteria for an initial compensable rating of 10 percent, but no higher, for a lumbar spine disability between May 12, 2004 and November 2, 2010 have been met.  38 U.S.C.  §1155 (2012); 38 C.F.R. §§4.7, 4.71a, Diagnostic Code 5237, 5238 (2017).  


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran has asserted that he should have a higher rating for his lumbar spine disability between May 12, 2004 and November 2, 2010 as the symptoms are worse than contemplated by the currently assigned noncompensable rating.  

At a November 2010 VA examination, the examiner noted that the Veteran's lumbar spine disability was progressive and that the Veteran constantly experienced moderately severe pain in the lumbar region of his back.  Upon physical examination, range of motion measurements were as follows: flexion to 30 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees each, and right and left lateral rotation to 20 degrees each.  There were no spasms, but there was tenderness, diffuse in the lumbosacral region in the central portion with guarding and abnormal gait.  There was no scoliosis, kyphosis or IVDS.  The examiner diagnosed lower lumbar stenosis with moderately severe lumbosacral strain.  The examiner noted that the Veteran had a lumbar spine injury during service for which he was treated and opined that the Veteran's lumbar spine condition was related to his in-service lumbar spine disability.  The examiner observed that the Veteran's pain had progressively become worse since his separation from service and that there were no other injuries.  The examiner also stated that the Veteran was limited to a desk job without manual labor prior to his retirement.  

A review of the record shows that the Veteran receives treatment from the VA Medical Center and private treatment providers for his various disabilities.  Of record is a September 1997 private consultation.  At the consultation, the clinician found that the Veteran had a long history of low back pain.  The clinician noted that the pain was localized in the low back and did not radiate to the buttocks or legs.  Examination of the low back revealed minimal tenderness over the left lumbosacral junction.  

The Board finds that the Veteran is entitled to a rating of 10 percent between May 12, 2004 and November 2, 2010 for his lumbar spine disability.  In this regard, the Board notes that in his 1997 consultation, the Veteran demonstrated localized tenderness not resulting in abnormal gait or abnormal spinal contour.  Furthermore, in his 2010 VA examination, the examiner characterized the Veteran's lumbar spine disability as a condition that had progressively worsened since his separation from service.  Therefore, the Board finds that an initial rating of 10 percent between May 12, 2004 and November 2, 2010 is warranted.  38 C.F.R. § 4.71a, Diagnostic Codes 5237-5243 (2017).  

The Board finds that the Veteran is not entitled to a rating in excess of 10 percent between May 12, 2004 and November 2, 2010.  In this regard, the Board notes that there is no indication from the record that prior to November 2, 2010 the Veteran had forward flexion of the thoracolumbar spine that was greater than 30 degrees but not greater than 60 degrees, a combined range of motion of the thoracolumbar spine that was not greater than 120 degrees, or muscle spasms or guarding that were severe enough to result in an abnormal gait or abnormal spinal contour.  Therefore, the Board finds that a rating in excess of 10 percent prior to November 2, 2010 is not warranted.  38 C.F.R. § 4.71a, Diagnostic Codes 5237-5243 (2017).  

Consideration has been given to assigning a higher rating from May 12, 2004 to November 2, 2010 for a lumbar spine disability.  However, the Board notes that the 1997 consultation does not indicate that the Veteran suffers any additional limitation due to pain, weakness or fatigability.  Furthermore, there is no other evidence in the record that the Veteran suffered additional limitation due to pain, weakness or fatigability between May 12, 2004 and November 2, 2010. 38 C.F.R. §§ 4.40, 4.45 (2017).  Thus, with consideration of all pertinent disability factors, there remains no appropriate basis for assigning a schedular rating in excess of 10 percent for a lumbar spine disability between May 12, 2004 and November 2, 2010.  

Consideration has been given to assigning a higher rating based on incapacitating episodes.  However, the record reflects that the Veteran has not been diagnosed with IVDS and that no bed rest was prescribed for the Veteran between May 12, 2004 and November 2, 2010.  Therefore, a higher rating based on incapacitating episodes is not warranted at this time.  38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). 


ORDER

Entitlement to a rating of 10 percent, but no higher, for a lumbar spine disability between May 12, 2004 and November 2, 2010 is granted. 





____________________________________________
R. FEINBERG
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs