Citation Nr: 18147112 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 14-37 790 DATE: November 2, 2018 ORDER Entitlement to a disability rating in excess of 10 percent for service-connected chronic lumbar spine strain is denied. FINDING OF FACT The Veteran’s chronic lumbar spine strain manifested by pain and limitation of motion, but with forward flexion of the thoracolumbar spine greater than 60 degrees and a combined range of motion greater than 120 degrees. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for service-connected chronic lumbar spine strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1990 to May 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. Regulations specify that disabilities of the spine should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (Spinal Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. When intervertebral disc syndrome (IVDS) is present, it is to be evaluated under the Spinal Formula unless it is more favorable to rate under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). Ratings under the Spinal Formula are made 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. As relevant to the thoracolumbar spine, a 10 percent rating requires forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 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. To warrant a 20 percent disability rating, forward flexion of the thoracolumbar spine must be greater than 30 degrees but not greater than 60 degrees, when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is assigned with unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Spinal Formula. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is to 90 degrees and the normal combined range of motion is 240 degrees. Id., Note (2). Associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Id., Note (1). Alternatively, the IVDS Formula provides for rating based on the total duration of incapacitating episodes. 38 C.F.R. § 4.71a, IVDS Formula. Incapacitating episodes are defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id., Note (1). A 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks. Higher ratings are available with incapacitating episodes of greater duration during a 12-month period. During the appeal period the Veteran underwent a VA examination in March 2011. Range of motion testing was performed and showed, at worst, forward flexion to 85 degrees and a combined range of motion no less than 225 degrees. During the examination the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. The Veteran’s neurological testing showed intact motor and sensory functions, and no neurological abnormalities. No report suggests that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran’s lay statements. The examiner opined that the Veteran had mild weakness, mild fatigability, mild loss of coordination after repetitive activity and flare-ups, and that the Veteran’s daily living is unaffected with no incapacitating episodes. In January 2012, the Veteran sought treatment for his low back pain. The examination revealed a range of motion that showed flexion to 90 degrees, and a combined range of motion no less than 205 degrees. The Veteran was scheduled for a VA examination in March 2014 to determine the current severity of his service-connected chronic lumbar spine strain disability. The Veteran did not attend the examination and requested it to be rescheduled. The Veteran was again scheduled for a VA examination in April 2016 which he again did not attend nor did he provide good cause as to why he did not attend. Under the laws and regulations, the Veteran has a responsibility of attending a VA examination to help establish entitlement to a claim. 38 C.F.R. §§ 3.326, 3.327. The provisions of 38 C.F.R. § 3.655(b) state that when a claimant does not report for an examination in conjunction with a reopened claim for a benefit which was previously disallowed, or for a claim for an increased rating of a service connected disability, the claim shall be denied unless good cause is established as to why the claimant failed to appear. Good cause includes, but is not limited to, the illness or hospitalization of the claimant, or the death of an immediate family member. 38 C.F.R. § 3.655(a). The Veteran did not appear for the examination scheduled in April 2016 to address the extent of his lumbar spine disability. The Veteran has provided no reason for not reporting for the examination. Therefore, the decision must be made on the evidence available. Based on the evidence of record, the Board determines that a disability rating in excess of 10 percent is not warranted. The treatment records do not show that the Veteran’s service-connected chronic lumbar spine strain has worsened to warrant a 20 percent disability rating. The Veteran’s spine shows forward flexion greater than 60 degrees, specifically flexion to at least 85 degrees, with only mild weakness, fatigability, and loss of coordination during a flare-up, and a combined total range of motion no less than 205 degrees. While the Veteran has reported experiencing spasms, muscle spasms or guarding severe enough to result in abnormal gait or abnormal spinal contour is not present. During the examination the Veteran’s movements were described as fluid and X-rays of the lumbar spine were normal. The Veteran also maintained normal neurological functions during the examination and did not report any abnormal neurological symptoms. There is no indication that the Veteran has IVDS or that he was prescribed bedrest by a physician for IVDS during this period. As such, a higher rating is not warranted for IVDS based on Diagnostic Code 5243. 38 C.F.R. § 4.71a. The Board notes that in Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016) the United States Court of Appeals for Veterans Claims (Court) held that to be adequate, examination reports must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Further, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that in addressing the nature of any flare-ups examiners must address the frequency, duration, characteristics, severity, and functional loss due to the flare-up. The situations addressed in Correia and Sharp were not fully addressed in the March 2011 VA examination or subsequent treatment records. However, as the Veteran cancelled his examination in April 2014 and failed to report to his examination in April 2016, these symptoms cannot be addressed by VA as the Veteran, while provided the opportunity, has not made this information obtainable by VA. Entitlement to a disability rating in excess of 10 percent for service-connected chronic lumbar spine strain disability is denied. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Megan Shuster, Law Clerk