Citation Nr: 18143048 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 16-14 617 DATE: October 17, 2018 ORDER A disability rating in excess of 20 percent for a lumbar spine disability is denied. FINDINGS OF FACT 1. The lumbar spine disability has been manifested by forward flexion limited to at most 60 degrees. 2. The lumbar spine disability has not more nearly approximated forward flexion limited to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or physician-prescribed best rest. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for a lumbar spine disability have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237-5242 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1997 to November 2001. This matter comes to the Board of Veterans’ Appeals (Board) from a November 2014 rating decision which, in pertinent part, continued a 20 percent rating for the lumbar spine disability. In July 2014, the Veteran sought an increase in the lumbar spine disability rating. Rating the Lumber Spine Disability Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. As such, the Board has considered the Veteran’s claim from July 2013 to the present. The Veteran contends that a higher rating than 20 percent is warranted for the lumbar spine disability. The lumbar spine disability is currently rated 20 percent under Diagnostic Code 5242, degenerative arthritis of the spine, using the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Under this formula, a 10 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, there is vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a. A 20 percent rating is warranted when the forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is 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 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. Id. The criteria under the General Rating Formula are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved. Id. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Further, 38 C.F.R. § 4.45 provides that consideration be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. Painful motion is an important factor of disability. The intent of the schedule is to recognize recognize actually painful, unstable, or malaligned joints. 38 C.F.R. § 4.59. In addition to the General Rating Formula, intervertebral disc syndrome may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS), whichever rating formula results in a higher rating. See 38 C.F.R. § 4.71a, DC 5243. IVDS is evaluated either on the total duration of incapacitating episodes over the past 12 months or by evaluation under the General Rating Formula combined with separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, as described under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The IVDS provides that a 10 percent rating is warranted when the veteran has incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted when the veteran has incapacitating episodes having a total duration of a least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted when the Veteran has 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 is warranted when the Veteran has incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. An incapacitating episode is “a period of acute signs and symptoms due to intervertebral disc syndrome that require bed rest prescribed by a physician and treatment by a physician.” 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). Turning to the evidence of record in this case, July and August 2014 VA physical therapy notes reflect that the Veteran reported low back pain that radiated down the left thigh to his foot. Lumbar spine range of motion was forward flexion to 60 degrees, extension to 20 degrees, right and left lateral flexion to 15 degrees, rotation to 10 degrees, and positive straight leg testing. An October 2014 VA examination report reflects that the Veteran denied having flare-ups of the lumbar spine disability. Range of motion testing revealed flexion to 80 degrees with pain beginning at 80 degrees, and extension, right and left lateral flexion, and right and left lateral rotation to 30 degrees, with no objective evidence of pain. Repetitive use testing resulted in weakened movement, excess fatigability, and pain on movement, but did not result in additional loss of range of motion. The VA examiner did not find evidence of localized tenderness or pain to palpation, nor was there guarding or muscle spasm. Muscle strength, reflexes, and straight leg tests were normal, with no evidence of radiculopathy. The VA examiner found no evidence of IVDS, but noted that the Veteran reported regular use of a brace. In June 2015, the Veteran reported that he hurt his back while exercising and pain was radiating down his right leg. Upon examination, there was paraspinal pain upon palpation, right greater than left, and straight leg raise test was positive on the right side. An August 2015 VA physical therapy note reflects the Veteran reported chronic low back pain. Lumbar spine range of motion was within full limits, but gait was slightly antalgic on the left side and there was decreased flexibility of the lower extremities. In March 2016, the Veteran stated that his lumbar spine condition had worsened since the last VA examination, with a reduction in forward flexion and severe muscle spasms. An April 2016 VA examination report reflects that the Veteran reported an overall worsening in the severity of the lumbar spine disability, with pain that increased with running and physical exercise, and flare-ups that would prevent movement. At the April 206 VA examination, range of motion testing revealed forward flexion of the thoracolumbar spine to 70 degrees, with 20 degrees in extension, right and left lateral flexion, and right and left lateral rotation, with pain in all planes that contributed to functional loss. There was tenderness or pain on palpation and in weight-bearing. The VA examiner noted that the Veteran was examined during a flare-up and after repeated use, with pain and fatigue significantly limiting functional ability, but with no additional loss of range of motion. The VA examiner found localized tenderness, guarding, and muscle spasm, but none resulted in an abnormal gait. The VA examiner assessed that the back disability resulted in less movement than normal, disturbance of locomotion, and interfered with sitting and standing. Straight leg testing was positive on the right side, with moderate constant pain, severe intermittent pain. Straight leg testing was negative on the left side, but mild constant pain and moderate intermittent pain was found. The examiner did not find ankylosis, but did note IVDS that had not required physician-prescribed best rest in the prior 12 months. The examiner noted that the Veteran occasionally used a brace. After considering all the evidence of record, the Board finds that a rating in excess of 20 percent for the lumbar spine disability is not warranted for the lumbar spine disability at any point during the period on appeal. The evidence of record reflects that, at most, forward flexion was limited to 60 degrees during the period on appeal, which more nearly approximates the 20 percent criteria under DC 5242. The evidence does not more nearly approximate limitation of the lumbar spine to 30 degrees or less or that there was favorable ankylosis of the thoracolumbar spine at any point during the period on appeal; accordingly, a rating in excess of 20 percent under the General Formula is not warranted for any period. 38 C.F.R. §§ 4.3, 4.71a, DC 5242. Testing that was conducted during the VA examinations affords an accurate measurement of the most limited range of motion of the Veteran’s lumbar spine, as passive range of motion tends to yield a less restrictive range of motion. The Board notes that the Veteran denied flare-ups during the October 2014 VA examination and the April 2016 VA examination was conducted during a flare-up. The VA examiners addressed the functional impact on the Veteran’s lumbar spine disability upon ordinary conditions of daily work and life and the Board notes that it has afforded the Veteran every possible benefit of the doubt where applicable. The Board also finds that a rating in excess of 20 percent is not warranted under the IDVS rating formula. To the extent that the evidence has demonstrated intervertebral disc syndrome, the Veteran did not indicate that he experienced incapacitating episodes of least four weeks during any twelve-month period on appeal. Furthermore, while the Veteran has reported limitations on the ability to stand, sit, lay down, or perform physical activity, the evidence does not indicate that he has been prescribed bed rest for extended periods. Accordingly, the Board finds that a rating in excess of 20 percent is not warranted under the IDVS formula. 38 C.F.R. §§ 4.3, 4.71a, DC 5243. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Owen, Associate Counsel