Citation Nr: 1756637 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 09-03 638A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a rating in excess of 20 percent for lumbosacral strain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Arnold, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1991 to June 1991 and September 1996 to May 1997, with additional periods of active duty for training (ACDUTRA) from October 1979 to January 1980 and June 1984 to July 1984. This matter came before the Board of Veterans Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In a March 2012 rating decision, the RO increased the evaluation of lumbosacral strain to 20 percent, effective June 2007. Because that decision constituted a partial grant of benefits sought on appeal, the issue of higher evaluations remains on appeal. See AB v. Brown, 6 Vet. Ap. 35, 38 (1993). The Veteran was scheduled for a videoconference hearing in March 2014. However, the Veteran withdrew his hearing request. In May 2014 and May 2017, the Board remanded this matter for further evidentiary development. The Board finds that the requested development has been substantially complied with and the appeal is ready for review. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran was granted total disability rating based on individual unemployability (TDIU) in a June 2016 rating decision. Therefore, TDIU is not of issue in this appeal. FINDING OF FACT During the period on appeal, the Veteran's lumbosacral strain has been characterized by painful motion, forward flexion of the thoracolumbar spine limited to, at worst, 60 degrees and muscle spasms; but without a showing of ankylosis of the spine, forward flexion limited to 30 degrees, or incapacitating episodes of Intervertebral Disc Syndrome (IVDS). CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for lumbosacral strain have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA With respect to the Veteran's issues on appeal, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. In Appellant's Post-Remand Brief, dated October 20, 2017, the Veteran contends through his representative that his lumbar strain symptoms have worsened since the last VA examination of May 2017 and that a new VA examination is therefore warranted. However, no objective evidence of worsening has been submitted in support of this statement nor has the Veteran identified any pertinent evidence that remains outstanding. In August 2017 the Veteran submitted a waiver indicating that he did not have any additional evidence to submit regarding his appeal. The Board finds that a new VA examination is not warranted. There is no objective evidence in the record suggesting a material change in the Veteran's low back disability since the May 2017 examination so as to warrant a reexamination. 38 C.F.R. § 3.327. There is no allegation that there is medical evidence not currently in the record that would indicate that a material change has occurred, or that the most recent VA examination, which was conducted only five months prior to the filing of the Veteran's Post Remand Brief, is inadequate. The Post-Remand Brief refers to the fact that the Veteran experiences flare-ups, but the May 2017 examination contains specific mention of the Veteran's reported level of pain during flare ups as being 10/10 and also includes an evaluation of the functional impact of flare-ups. The Board therefore finds the reports of the VA examinations already in the record to be adequate for rating purposes as they note all findings needed to adjudicate the claim, and that a new examination is not needed. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See 38 C.F.R. § 3.159(c)(4). Therefore the Board finds that the duty to assist has been satisfied. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4). Legal Criteria and Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Individual disabilities are assigned separate diagnostic codes. See U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for the rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. In addition, joints such as the spine "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; Correia v. McDonald, 28 Vet. App. 158 (2016). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 39 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For all periods relevant to this appeal, the Veteran's lumbosacral strain has been rated according to 38 C.F.R. § 4.71a, DC 5237. Following the RO's partial grant of benefits on appeal, the assigned rating is currently 20 percent effective June 2007, the date of the Veteran's claim for an increased rating. Under the DC, 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 the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. A 40 percent rating is assigned for a thoracolumbar spine disability characterized by forward flexion of the thoracolumbar spine 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. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Any associated objective neurologic abnormalities are to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees. 38 C.F.R. § 4.71a, Note (2). All measured ranges of motion are to be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, Note (4). VA treatment records from Jesse Brown VA Medical Center (VAMC) show the Veteran's treatment for his back pain during the period on appeal and a prescription for an orthopedic device. His VA problem lists include a diagnosis of backache NOS. There is no diagnosis or radiculopathy or any other neurologic abnormality. The VAMC records document urgent care visits for back pain. The Veteran visited the VAMC urgent care for back pain in June 2007. Treatment records note only that the Veteran was ambulatory and needed better pain control. In August 2007, the Veteran did a job assessment at the VAMC, where he indicated that his pain from his neck, back and shoulder was an 8 and that he uses a back brace when working. In September 2008, the Veteran again sought treatment for back pain. Urgent care records indicate that a spinal x-ray was performed which showed degenerative disc disease, which his provider concluded was likely causing the muscle spasms on the left side and which "corresponds with radicular-type pain." The Veteran reported pain in his shoulder but "denied numbness or tingling anywhere else." The records document muscle spasm, lumbar spine and paraspinal muscle tenderness but note that the Veteran had a steady gait and that his sensation was intact. The Veteran again presented to urgent care at Jesse Brown VAMC in December 2015 with "lower back pain and left buttocks pain and numbness for the past week since lifting heavy packages a week ago." The Veteran denied numbness and tingling down his legs and denied bladder or bowel dysfunction. He reported that "leaning over causes a pulling sensation in his back muscles on the left side." The VAMC providers tested strength in all extremities, finding 5/5 strength in all extremities. The records also note that the Veteran had stable gait without any assistive aids, normal alignment of the back with mild tenderness of his paraspinal muscles of his upper thoracic spine and lumbar spine on the left side. The provider opined that the Veteran "is likely suffering from muscle strain." He was prescribed naproxen and advised to use muscle rubs. At a January 2008 examination range of motion (ROM) testing showed forward flexion to 90 degrees with mild pain at 90 degrees. The examiner noted that the ROM during active, passive and repetitive motions was the same. The examiner also found no additional functional impairment secondary to weakness, fatigability, incoordination or flare-ups and noted that there is no radiation of the pain. It was noted the Veteran did not need any assistive devices, there was no radiating pain reported and no neurological findings. At a June 2011 VA examination the examiner noted that the Veteran's back pain has waxed and waned and that he had no evaluation or significant medical treatment for his back for quite some time. The Veteran denied any incapacitating episodes. ROM testing shoed forward flexion to 60 degrees, "where he begins to have pain and discomfort in the low back at 60." He was able to extend to 25 degrees and had reproducible pain at 25. The examiner found no evidence of muscle spasms. The examiner noted that the Veteran's ROM during passive, active and repetitive motion appears the same. The examiner also found that there was no additional functional impairment of any weakness, incoordination or flare ups. At a July 2012 VA examination ROM testing showed forward flexion to 85 degrees, and the examiner noted that painful motion also began at that point. The Veteran was able to perform repetitive use, and the examiner found that with repetition forward flexion was reduced to 80 degrees. However, the examiner found that despite the increase in ROM limitations due to repetition, the Veteran did not have functional loss after repetitive testing. All muscle strength and sensory testing was normal and the examiner found no signs or symptoms of radiculopathy. At an April 2015 VA examination ROM testing showed forward flexion to 90 degrees and extension to 20 degrees. Pain was noted on the exam but the examiner stated that the pain did not result in functional loss. Pain was also noted in weight-bearing testing. The examination also found no loss of function on repetitive use, no guarding, no pain, weakness or fatigability limiting function with repeated use, no radiculopathy and no ankylosis. The examiner also found no evidence of IVDS. The examiner concluded that the Veteran had a disability of mild severity, noting that "there was no additional increased pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare-ups or when the joint is used repeatedly over time." At the May 2017 VA examination the Veteran reported "persistent episodes of back pain that are worse with forward bending, lifting loads, and carrying loads." ROM testing showed forward flexion to 75 degrees, noting that the Veteran reported low back pain at 75 degrees. The examiner also observed pain in the Veteran's left lower back when either leg was elevated 40 degrees from the examination room table. While the examiner noted pain on the exam, he found that it does not cause a functional loss and specifically noted that there was no evidence of pain with weight bearing. In addition, the examiner found no loss of function or ROM with repetitive use, and that pain, weakness, fatigability, and incoordination do not limit functional ability with repeated use. The examiner also found no evidence of ankylosis. The examiner also found that there were no incapacitating episodes requiring overnight hospitalization or prescription of bed rest by a healthcare provider. Upon review of the file, the examiner found no evidence of radiculopathy or other neurological impairments, specifically noting that the Veteran reported "no episodes of loss of sensation, weakness in his limbs, balance problems or disturbance in his bowel and bladder function." Reflex and sensory exams were conducted and the results were normal. The Veteran contends that his service-connected lumbosacral strain is more severe than the 20 percent rating currently assigned. For the reasons that follow, the Board concludes that an increased rating is not warranted. At the outset, the Board finds that the VA examinations are adequate for appellate review. There is no evidence that the examiners were not competent or credible, and as the reports are based on the Veteran's statements, in-person examinations and the examiners' observations, the Board finds they are entitled to significant probative weight with respect to the severity of the Veteran's lumbosacral strain at the time of the examinations. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-05 (2008). In addition, the Board notes that the findings in the VA examinations were largely consistent regarding the Veteran's degree of impairment across a nine year period from the first examination in January 2008 to the most recent examination in May 2017. While there is some variation in the ROM testing across the years, the examiners consistently noted a lack of functional impairment due to weakness, fatigability, incoordination or flare-ups and a lack of incapacitating episodes. As noted above, to warrant a disability rating in excess of 20 percent for lumbosacral strain, the evidence should show forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, DC 5237. In regards to the ROM, forward flexion, has been shown to be, at worst and upon consideration of pain, limited to 60 degrees. As discussed above, five VA examinations were conducted over the entire period on appeal and all showed forward flexion of 60 degrees or higher. In fact, with the exception of the June 2011 examination showing 60 degrees of forward flexion, most of the medical evidence of record during the period on appeal indicates forward flexion of over 60 degrees, with one exam showing normal forward flexion of 90 degrees. The most recent exam showed 75 degrees of forward flexion. Neither the examinations nor any medical evidence of record indicate, and the Veteran does not contend, that he has ankylosis of the spine. There also no evidence that the Veteran has IVDS. As noted above, the medical evidence consistently indicates that the Veteran has not had either a diagnosis of IVDS or incapacitating episodes requiring overnight hospitalization or prescription of bed rest by a healthcare provider. Additional factors that could provide a basis for an increased rating have also been considered; however, it is not shown that the Veteran has any functional loss beyond that being currently compensated. 38 C.F.R. §§ 4.10, 4.40, 4.45. The medical evidence of record indicates that the Veteran does not have additional functional loss due to pain, weakness, fatigability, or incoordination that would warrant a higher disability evaluation. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran has contended in his Post-Remand Brief that he experiences flare-ups, which is supported by the lay statement submitted by his girlfriend, stating that he has trouble moving around from time to time. However, the most recent VA examination in May 2017 specifically considered the Veteran's reports of 10/10 pain during flare ups, but found that the Veteran does not have significant limitations on functional ability during flare ups. This finding was consistent with the findings from the prior four VA examinations conducted during the period on appeal. The May 2017 examination also included ROM testing for painful motion and weight bearing and non-weight-bearing analysis and noted the point at which painful motion began, which was at 75 degrees of forward flexion. 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner noted pain on the exam but noted that it did not cause functional loss and specifically found that there was no evidence of pain with weight bearing. The Board therefore finds that the criteria for a rating in excess of 20 percent for lumbosacral strain are not met. The medical evidence shows that the Veteran has had forward flexion of higher than 30 degrees during the appeal period and there has been no ankylosis of the spine at any point during the period on appeal. While the Veteran's reports of pain during flare-ups and use were noted in the medical evidence and supported by lay statements, the competent evidence of record during the period on appeal indicates that they do not constitute an additional functional limitation that would warrant an increased rating above 20 percent. The Board has also considered the Veteran's lay statements. In this regard, during the period of his appeal, the Veteran has consistently stated that he is entitled to an increased rating. The Veteran has also asserted through his representative in a statement that he cannot forward flex beyond 30 degrees. While the Board notes that the Veteran is competent to describe symptoms he experiences, the record does not contain any objective evidence of forward flexion limited to 30 degrees or less, so no probative weight is assigned to his statement. In October 2017, he submitted a statement from his girlfriend noting that he can "barely move around from time to time." The Board notes that a lay person is competent to report lay-observable symptoms such as pain. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board therefore finds this statement to be both competent and credible and accords it significant weight in describing periodic limitations on the Veteran's movement. The Board has also considered whether a separate rating should be assigned for associated neurological symptoms, pursuant to 38 C.F.R. § 4.71a, Note (1). As discussed, the Veteran's VA problem lists and medical records do not indicate diagnoses of radiculopathy or other neurological disabilities. While VA urgent care records dated September 15, 2008 note "radicular-type pain", a subsequent diagnosis of radiculopathy was not made. The Veteran denied numbness or tingling in his lower extremities at that urgent care visit. When the Veteran again reported to urgent care on December 29, 2015 with complaints of numbness, the treatment records indicate that the sensation did not extend down his legs and that there was no bladder or bowel dysfunction, and the provider concluded that condition was likely muscle strain, not as radiculopathy or another neurological impairment. The May 2017 examination also found no evidence of radiculopathy or other neurological impairments. The examiner specifically noted that the Veteran did not report loss of sensation, weakness in his limbs, balance problems or bowel disturbance that could indicate an associated neurological impairment. The examiner also conducted reflex and sensory testing, both of which had normal results. Given that the May 2017 VA examination conducted specific neurologic tests, reviewed the medical evidence of record, the Board accords its findings significant probative weight. The conclusions reached by the May 2017 examiner are consistent with those of the July 2012 and April 2015 VA examiners. Both the July 2012 and April 2015 examiners reviewed the Veteran's medical records and conducted an in-person examination. The July 2012 and April 2015 examiner both conducted reflex and sensory testing, which in both cases had normal results, straight leg raising testing, which had negative results, and found that the Veteran did not have radicular pain or other signs and symptoms of radiculopathy. As both examiners reviewed the medical records and conducted neurological tests and recorded their findings, which are consistent with the May 2017 examiner's findings, Board accords the examination results significant probative weight. An impression of radiculopathy was noted in the June 2011 VA examination, which observed mild radiation of pain into the left buttock and recorded an impression of early left-sided lower extremity radiculopathy. The examiner noted that the Veteran's medical records were not available to review. The examiner conducted range of motion and motor testing but the examination report does not indicate that reflex testing was conducted. In addition, the examiner states that the Veteran's sensation is intact throughout, but does not clearly indicate the basis of this conclusion or that sensory testing was conducted. For these reasons, the Board accords the neurological findings of the July 2011 VA examiner little probative weight. Given the above, the Board is inclined to assign greater probative weight to the consistent neurological findings and conclusions of the May 2017, April 2015 and July 2012 VA examiners than to the findings of the July 2011 VA examiner. See Prejean v. West, 13 Vet. App 444, 448-49 (2000) (stating that factors for assessing the probative value of a medical opinion include the physician's access to the claims file and the thoroughness and detail of the opinion); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (stating that in assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits). Accordingly, the Board concludes that the preponderance of the competent evidence of record does not support a finding that the Veteran has a neurologic abnormality associated with his lumbosacral strain disability. All potentially applicable DCs have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against an increased rating in excess of 20 percent. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, an increased rating in excess of 20 percent for the Veteran's service-connected lumbosacral strain disability is denied ORDER Entitlement to a rating in excess of 20 percent for lumbosacral strain is denied. ____________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs