Citation Nr: 18145910 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 08-36 715 DATE: October 30, 2018 ORDER Entitlement to a rating in excess of 20 percent for service-connected residuals of a low back injury (“low back disability”) is denied. FINDING OF FACT For the entire appeal period, the Veteran’s low back disability had forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; and has exhibited no evidence of scoliosis, reversed lordosis, abnormal kyphosis, or ankylosis. CONCLUSION OF LAW For the entire appeal period, the criteria for a rating in excess of 20 percent for low back disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code 5243 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from February 1974 to February 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2016, the Veteran and his wife testified at a hearing. The transcript of the hearing is of record. By way of background, the Veteran appealed his claims for entitlement to a rating in excess of 10 percent for migraine headaches and entitlement to a rating in excess of 20 percent for low back disability. In a July 2017 Board decision, the Board found the Veteran was entitled to an evaluation of 50 percent – the highest percentage allowed – for migraine headaches. The Board remanded the issues of entitlement to a rating in excess of 20 percent for a low back disability and entitlement to a total disability rating based on individual unemployability (TDIU). In an August 2018 rating decision, the VA granted the Veteran’s claim for a TDIU, effective September 26, 2007. As such, the remaining issue on appeal is entitlement to a rating in excess of 20 percent for a low back disability. 1. Entitlement to a rating in excess of 20 percent for service-connected low back disability is denied. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2018); 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 being said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007); see also Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3 (2018). A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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. All spine disabilities covered by Diagnostic Codes 5235 to 5242 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. Under the General Formula, the spine is evaluated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. Under the 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; and muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour. 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, 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 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. Concerning disabilities affecting the spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Formula, Note 1. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Id. at Note 2. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation, with the normal combined range of motion of the thoracolumbar spine being 240 degrees. Unfavorable ankylosis is a condition in which the entire thoracolumbar spine is fixed in flexion or extension, and the ankylosis results in one of more of the following: difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen, dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation, or neurologic symptoms due to nerve root stretching. Id. at Note 5. Fixation of a spinal segment in neutral position always represents favorable ankylosis. The Veteran filed his claim for an increased rating in September 2007. Based on the evidence of record, the Board finds that the preponderance of the evidence is against a finding that a rating in excess of 20 percent is warranted for the Veteran’s low back disability for the entire appeal period. A review of the records shows that the Veteran was afforded VA examinations in October 2007, November 2010, and January 2018. In the October 2007 VA examination, the Veteran reported that he would have daily flare-ups of back pain. The Veteran also endorsed having shooting pain in his bilateral legs. The Veteran stated that he received two epidural injections but the injections were only helpful for a few weeks before the pain returned. On examination, the Veteran had a forward flexion to 40 degrees, extension to 20 degrees, right and left lateral flexion to 10 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 20 degrees. There was no additional loss of motion with repetitive use. There was no instability and the Veteran exhibited normal gait. In fact, the Veteran was able to take a few steps on heels and toes, tandem walk, and stand on one leg. There was normal strength with no evidence of muscle atrophy in his bilateral legs. The treatment records in 2007 show that the Veteran received three lumbar epidural steroid injection. See January 2008 Medical Treatment Record – Non-Government Facility. A July 2008 x-ray scan of the lumbar spine revealed severe degenerative joint and disc disease involving the L2-3 and L3-4; irregular L3 superior endplate that may be related to degenerative changes; mild posterolisthesis of L3 in relation to L4; and atherosclerosis. See July 2010 Medical Treatment Record – Non-Government Facility. In September 2008, the Veteran underwent a lumbar fusion. In the November 2010 VA examination, the Veteran complained of stiffness, weakness, lack of endurance, and fatigability in his back. The Veteran reported that he would have flare-ups every day, but stated that he has not had any incapacitating episodes due to his back. On examination, after three repetitions the Veteran was able to forward flex to 55 degrees, extend to 22 degrees, right lateral flex to 30 degrees, left lateral flex to 25 degrees, left lateral rotate to 30 degrees, and right lateral rotate to 23 degrees. There was pain with motion but no limitation with range of motion on repetition. There was no apparent scoliosis, no exaggerated thoracic kyphosis and no exaggerated lumbar lordosis. Further, there was no guarding of movement, deformity, malalignment, drainage, edema, redness, heat, spasm, fatigue, lack of endurance, weakness, incoordination, instability or pertinent abnormal weightbearing. In 2011, the Veteran underwent a right transforaminal lumbar interbody fusion. See May 2016 Medical Treatment Record – Non – Government Facility. In 2012, the Veteran was noted to have normal range of motion and normal gait. See June 2016 Medical Treatment Record – Government Facility. A January 2013 x-ray scan of the lumbar spine revealed no acute fracture or subluxation, mild levoscoliosis, laminectomy changes of L2-L5 with pedicle fixation of L4-5, mild disc space narrowing of L4-5, and significant disc space narrowing of L2-4. See November 2015 Medical Treatment Record – Non – Government Facility. In 2014, the Veteran continued to exhibit full range of motion, normal posture and gait, normal strength and tone, and normal lumbosacral spine movements with no evidence of scoliosis. See February 2016 CAPRI and November 2015 Medical Treatment Record – Non – Government Facility. However, by May 2015, the Veteran started to exhibit decrease range of motion of his low back. See October 2015 Medical Treatment Record – Non – Government Facility. In April 2016, the Veteran underwent another surgery for discectomy and transforaminal lumbar interbody infusion. See May 2016 Medical Treatment Record – Non-Government Facility. Almost two months post-surgery, the Veteran exhibited good range of motion with no midline lumbar tenderness or paravertebral muscle tenderness. See November 2017 CAPRI. In the April 2016 hearing, the Veteran argued that on average he would stay in bed anywhere from three to four hours a day for about three to five days a week. The Veteran alleged that sometimes he cannot get out of bed for two or three days due to his back. The Veteran stated that he underwent three back surgeries. Based on the records and the Veteran’s statement, the Veteran was afforded another VA examination to assess the severity of the low back disability. In the January 2018 VA examination, the Veteran complained of low back pain. On examination, the Veteran could flex to 65 degrees, extend to 20 degrees, right lateral reflex and rotate to 25 degrees, left lateral flex to 20 degrees, and left lateral rotate to 25 degrees. Pain was noted on forward flexion, extension, and left lateral flexion but did not result in or cause functional loss. Further, the Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion. There was no guarding but there was muscle spasm not resulting in abnormal gait or abnormal spinal contour. The Veteran exhibited intact strength and normal reflexes. Based on the records, the Board finds that for the entire appeal period the Veteran’s low back disability is consistent with a 20 percent disabling rating. The records show that the Veteran was able to forward flex, at worst, 40 degrees; extend, at worst, to 20 degrees; and combined range of motion, at worst, 110 degrees. These findings are consistent with a 20 percent disabling rating. The Veteran is not entitled to the next higher rating of 40 percent disabling rating as there is no evidence that the Veteran’s forward flexion of the thoracolumbar spine is 30 degrees or less, or that the Veteran exhibited ankylosis of the thoracolumbar spine. Thus, the Board finds that the Veteran’s low back disability did not more nearly approximate the criteria for a rating in excess of 20 percent. 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5243. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Noh, Associate Counsel