Citation Nr: 18143481 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 14-03 024 DATE: October 19, 2018 ORDER Entitlement to a 40 percent rating for chronic lumbar spine strain is granted for the entire appeal period. FINDING OF FACT Throughout the appeal period, flare-ups have limited forward flexion of the thoracolumbar spine to less than 30 degrees but have not resulted in ankylosis. CONCLUSION OF LAW The criteria for entitlement to a 40 percent rating for chronic lumbar spine strain have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.25, 4.71a, Diagnostic Code (DC) 5237 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had qualifying service from November 1983 to November 1985, June 1998 to November 1998, March 2004 to September 2004, November 2004 to April 2005, January 2009 to April 2009, and December 2009 to January 2011. In July 2014, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. In June 2015 and December 2017, the Board remanded for additional development. 1. Increased Rating for Chronic Lumbar Spine Strain In determining the severity of a disability, the Board applies the criteria set forth in the Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If the disability more closely approximates the criteria for the higher of two ratings, the higher rating is assigned. 38 C.F.R. § 4.7. The Veteran’s lumbar spine disability is rated under DC 5237 (10 percent from May 15, 2007, and 20 percent from November 16, 2015). See July 2018 Codesheet. All spine disabilities covered by DCs 5235 to 5243 are rated according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula) based on limitation of motion. 38 C.F.R. § 4.71a, General Formula. A 10 percent rating is warranted for: forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; 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. A 20 percent rating is warranted for: forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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 such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for: forward flexion of the thoracolumbar spine at 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 evaluated separately. 38 C.F.R. § 4.71a, General Formula, Note (1). Of note, the Veteran has already been awarded separate service connected for associated neurological manifestations of: (a) left lower extremity sciatica; (b) left lower extremity femoral radiculopathy; and (c) right lower femoral radiculopathy. See July 2018 Codesheet. Intervertebral disk syndrome (IVDS) is evaluated either under the General Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes (Incapacitating Episodes Formula), whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, General Formula, Note (6). For purposes of evaluation, an “incapacitating episode” is a period of acute signs and symptoms due to IVDS that requires a period of bed rest in the last 12 months that was prescribed and treated by a physician. 38 C.F.R. § 4.71a, Incapacitating Episodes Formula, Note (1). Although the Veteran has been diagnosed with IVDS, there is no evidence indicating physician-prescribed and treated bedrest. See June 2007 VA joints examination; March 2011 VA general medical examination; July 2014 hearing transcript; November 2015 VA back examination; February 2018 VA back examination; VA and private treatment records; lay statements. As such, the Incapacitating Episodes Formula criteria are inapplicable and the Board’s analysis focuses on whether an increased rating is warranted under the General Formula. Throughout the appeal period, the lumbar spine disability has been manifested by flare-ups. See March 2011 VA general medical examination (prolonged standing and sitting aggravated the condition); July 2014 hearing transcript (avoids long walks, stairs, or sitting for long periods); November 2015 VA back examination (sitting or walking for longer than one hour induces flare-ups and requires rest for pain relief); February 2018 VA back examination (increased pain some days that is worse on cold and rainy days and when sitting, standing, and walking for long periods of time; severe flare-ups several times per week and lasting for “hours”). However, the February 2018 VA back examination is the only examination to date with findings consistent with the DeLuca, Correia, and Sharp holdings. DeLuca v. Brown, 8 Vet. App. 202 (1995) (examiners must contemplate additional functional loss due to weakness, fatigability, incoordination, or painful motion); Correia v. McDonald, 28 Vet. App. 158 (2016) (when possible, examiners must include range of motion testing on active and passive motion and in weight-bearing and nonweight-bearing conditions); Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) (examiner must attempt to elicit information regarding the severity, frequency, duration, and functional loss during flare-ups before determining that additional range of motion loss due to flare-ups cannot be estimated). As such, the Board focuses its attention on the February 2018 findings and applies them retroactively to the entire appeal period. The February 2018 examination revealed: (a) initial forward flexion to 35 degrees; (b) observed repetitive use forward flexion to 25 degrees; (c) the examiner’s inability, without resorting to mere speculation, to estimate additional range of motion loss due to repeated use over time and flare-ups; and (d) no ankylosis or neurologic abnormalities except radiculopathy. Crucially, observed repetitive use forward flexion to 25 degrees already meets the criteria for a 40 percent rating (requiring 30 degrees or less), so adding in any additional range of motion loss due to repeated use over time and flare-ups (which have been consistently reported throughout the appeal period) further supports this increase. However, there is no evidence of ankylosis at any time during the appeal period. See March 2011 VA general medical examination (no ankylosis); July 2014 hearing transcript (no ankylosis); November 2015 VA back examination (no ankylosis); February 2018 VA back examination (no ankylosis); VA and private treatment records (no ankylosis). Without ankylosis, the highest schedular rating available for this disability is 40 percent, which the Board grants for the entire appeal period. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Daus, Associate Counsel