Citation Nr: 1801610 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-09 175 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an increased rating for chronic lumbosacral strain, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had unverified periods of Reserve service in 1976. This matter comes before the Board of Veterans' Appeals (Board) from December 2011 and August 2015 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in Milwaukee, WI. In November 2016, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Veteran submitted a waiver of RO consideration of any newly submitted evidence. FINDINGS OF FACT 1. The most probative evidence is against a finding that the Veteran's service-connected chronic lumbosacral strain disability has caused limitation of forward flexion limited to not greater than 60 degrees, or a combined range of motion not greater than 120 degrees, or guarding or muscle spasm severe enough to cause abnormal spinal contour or abnormal gait. 2. The evidence is against a finding that the Veteran's service-connected spine disability is manifested by radiculopathy or other neurological abnormalities. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for chronic lumbosacral strain have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.71a, Diagnostic Code 5237 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Legal Criteria Rating Disabilities in general Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when 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). Rating the Spine The diagnostic code criteria pertinent to spinal disabilities in general are found at 38 C.F.R. § 4.71a, Diagnostic Codes 5235 - 5243. Unfavorable ankylosis of the entire spine (100 percent); Unfavorable ankylosis of the entire thoracolumbar spine (50 percent); Unfavorable ankylosis of the entire cervical spine, or forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine (40 percent); 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 (20 percent); 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 (10 percent). In addition, intervertebral disc syndrome may also be evaluated based on incapacitating episodes, depending on which method results in the higher evaluation when all disabilities are combined under § 4.25. Analysis The Board finds, as discussed in further detail below, that an increased rating is not warranted for any period on appeal. The Veteran's service-connected chronic lumbosacral strain is rated as 10 percent disabling from September 2011, the date upon which she filed a claim for an increased rating, under DC 5237. The Board, in consideration of 38 C.F.R. § 3.400 (o)(2) and Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010), has considered the evidence in the one year prior to the date of receipt of the increased rating claim, but finds that it does not support a finding that the Veteran's disability increases in severity, such as to warrant a higher rating, during that one year period. A September 2011 VA examination report reflects that the Veteran, who reported pain usually at a level five to six and a half out of 10, had 70 degrees of forward flexion with no objective evidence of pain, and full range of motion for extension, bilateral flexion, and bilateral rotation, with painful motion beginning at the endpoints of full range of motion. After repetitive range of motion testing, the Veteran was able to flex to 90 degrees or greater (full). There was no loss of range of motion for any movements. The Veteran did not have guarding or muscle spasm. She also had full strength of the lower extremities, although her deep tendon reflexes were absent for the knees and ankles. She did not have radiculopathy or intervertebral disc syndrome (IVDS). She did not use an assistive device for locomotion. She did not report that flare-ups impact the function of her back. The examiner found that the Veteran's limited range of motion "can be partially attributable to fairly marked truncal obesity. She can flex her thoracolumbar spine to more than 90 degrees to pick an item up off of the floor." The examiner also found that the Veteran had degenerative changes which are less likely as not related to her service-connected condition. The examiner noted as follows: As the original injury was not trauma related, these changes are more likely than not due to normal aging and the history of motor vehicle accident some time post service. The degenerative changes would be at least as likely as not to account for the lion's share of the veteran's symptoms. In an addendum, the examiner stated as follows: All of the veteran's current symptoms and signs on examination would be at least as likely as not due to the degenerative disease, which is a normal consequence of aging. The Veteran underwent another VA examination in May 2015. Upon examination, she had forward flexion to 40 degrees, extension from 0 to 5 degrees, bilateral lateral flexion to 20 degrees, and bilateral lateral rotation to 30 degrees. She did not have muscle spasms, and did not have localized tenderness or guarding resulting abnormal gait or abnormal spine contour. She had disturbance of locomotion, interference with sitting, and interference with standing. With regard to flare-ups, the only report of their effect was that the Veteran's "feet are involved." She had full muscle strength of her lower extremities, and hypoactive (1+) reflexes of the knees and ankles. She had a normal sensory examination. She was noted to not have radicular pain, but it was also noted that she reported that she is not able to "negotiate things well, legs painful and heavy." Thus, the examiner found involvement of the sciatic nerve on the right which was mild. The Veteran reported urinary incontinence for years but the examiner found it less likely than not due to her service-connected strain. The Veteran did not have IVDS. She used a walker for locomotion. The examiner found, in pertinent part, as follows: . . . radiculopathy is related to degenerative disease of the lumbar spine. In my opinion both strain and degenerative disease are likely to causes [sic] tenderness and I would have to resort to speculation to determine the degree related to each condition. In my opinion degenerative disease is more likely to cause limited [range of motion]. . . . The Veteran underwent another VA examination for her back in August 2017. She reported that she has pain all day which waxes and wanes, and was a level 6. She reported that she occasional takes ibuprofen. She reported pain when she gets up to do things, but it will be also present at rest, albeit at a lower level. Upon examination, she had forward flexion to 70 degrees, full extension, full bilateral lateral flexion, and full bilateral lateral rotation. The examiner noted that although the Veteran only flexed to 70 degrees during flexion examination, she was observed flexing to 90 degrees at other times during the appointment. Pain was noted on extension only and it did not cause functional loss. There was no objective evidence of localized tenderness or pain on palpation and no evidence of pain with weightbearing. Flare-ups were found to be not applicable. There was no guarding or muscle spasm. Muscle strength testing revealed full muscle strength. She had absent deep tendon reflexes, but normal sensory examination findings. The 2017 VA examiner found that the Veteran's ability to flex was "hampered by truncal factors. Has difficulty cooperating with required movements in examination of the back." The examiner also noted in pertinent part as follows: Moderate severity for back strain. Other back issues, as noted on previous exams, such as degenerative changes and radiculopathy, are not related to service. She has multiple myriad serious comorbid conditions. Inability to perform certain parts of the exam is due to general inanition. She resists passive straight leg raise with 5+/5 strength. There is evidence of pain on passive and active ROM. There is no evidence of pain on weight bearing and non-weight bearing ROM was conducted on joints. The Board has also considered the clinical records which are negative for use of a TENS unit, consistent physical therapy, or prescription medication for back pain. They reflect that the Veteran has reported back pain at various levels. (e.g. 0, 2, 4 out of 10 (March 2016) 3 out of 10 (April 2016), 5 out of 10 (April 2016, September 2016), 6 out of 10 (Aug 2016, Oct 2016), and 8 out of 10 (august, September 2016). Based on the foregoing, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent for any period on appeal. The evidence is against a finding that she had forward flexion of the thoracolumbar spine not greater than 60 degrees due to her service-connected disability, even with consideration of factors discussed in DeLuca v. Brown, 8 Vet. App. 202 (1995) with regard to functional impact. As noted above, the Veteran had flexion to 70 degrees upon examination in September 2011, and the examiner noted that she actually observed the Veteran bending to more than 90 degrees. At the May 2015 VA examination, the Veteran's flexion was limited to 40 degrees; however, the examiner opined that it was more likely than not that the Veteran's limitation in range of motion was due to her non-service-connected degenerative disease. At the August 2017 VA examination, the Veteran had forward flexion to 70 degrees upon examination, but was once again noted to be able to flex to 90 degrees, and the examiner found that the Veteran's ability to flex was "hampered by truncal factors." Finally, the examiner found that the Veteran's inability to perform parts of the examination was due to reasons not related to her back (i.e. general inanition). Thus, the evidence supports a finding that the Veteran's service-connected back disability is not manifested by a range of motion limited to 60 degrees or less of forward flexion, or a combined range of motion of the thoracolumbar spine of not greater than 120 degrees. In addition, she does not have muscle spasm or guarding severe enough to cause abnormal gait or abnormal spinal contour. The Board acknowledges the Veteran's reports of pain. However, pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss. Pain may cause a functional loss but itself does not constitute functional loss; rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). With regard to giving proper consideration to the effects of pain and other symptoms in assigning a disability rating per Mitchell and Deluca, the reports noted above document consideration of these principles and there is no indication that increased compensation would be warranted under these principles as such factors do not result in additional functional loss that that resulted in greater limitation of motion such as to actually limit the Veteran's motion to not greater than 60 degrees or forward flexion or not greater than 120 degrees of combined movement of the thoracolumbar spine. The Board has also considered whether a higher rating would be warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. That formula provides, in pertinent part, a 20 percent rating when the evidence shows incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted when the evidence shows incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating, the maximum available, is warranted when the evidence shows incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For VA purposes, an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The evidence is against a finding that the Veteran has IVDS or has had incapacitating episodes of at least 2 weeks. The evidence reflects that she did not have any incapacitating episodes (see September 2011, May 2015, and August 2017 VA examination reports). Finally, the Board has considered whether separate ratings for associated objective neurological abnormalities of her spine disability are warranted. The probative evidence is against a finding of objective evidence of such disabilities associated with her service-connected spine disability. As noted above, the September 2011 VA examination report reflects that the Veteran did not have radiculopathy and all her symptoms were due to her non-service-connected degenerative disease which was due to aging. The May 2015 VA examination report reflects that the Veteran had a normal sensory examination but reported pain in her lower extremities which the examiner found was mild sciatic nerve involvement. The examiner noted that the Veteran's radiculopathy is related to her nonservice-connected degenerative disease of the spine, and her reported urinary incontinence was also less likely than not due to her service-connected strain. The August 2017 VA examination report again reflects that the Veteran's radiculopathy is not related to her service-connected disability. Although the Veteran is competent to report symptoms such as pain, she has not been shown to have the experience, training, or education necessary to make an etiology opinion to the symptoms of radiculopathy, or other neurological abnormalities. The Veteran's claim has been considered entirely under the VA rating schedule contained in 38 C.F.R., Part 4. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Entitlement to an increased rating for chronic lumbosacral strain, currently evaluated as 10 percent disabling, is denied. ____________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs