Citation Nr: 18152889 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 14-23 802 DATE: November 27, 2018 ORDER 1. Entitlement to a rating in excess of 10 percent for a lumbar strain with degenerative disc disease (lumbar spine disability) prior to April 25, 2018 is denied. 2. Entitlement to a rating in excess of 20 percent for a lumbar spine disability as of April 25, 2018 is denied. FINDING OF FACT 1. Prior to April 25, 2018, the Veteran’s lumbar spine disability was not manifested by forward flexion of the thoracolumbar spine of 60 degrees or less, combined range of motion of the thoracolumbar spine of 120 degrees or less, 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. 2. From April 25, 2018 to the present, the Veteran’s lumbar spine disability has not been manifested by forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. CONCLUSION OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for a lumbar spine disability prior to April 25, 2018 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R §§ 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242. 2. The criteria for entitlement to a rating in excess of 20 percent for a lumbar spine disability as of April 25, 2018 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R §§ 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Navy from July 1989 to July 1993. The Veteran was scheduled for a travel Board hearing in November 2017 but did not appear at this hearing and has not requested a new hearing. Thus, there is no Board hearing request pending at this time. The Veteran received a Decision Review Officer hearing in January 2017, as discussed below. The Board notes that this case was previously remanded for further development in April 2018. Development has been completed, and the case is again before the Board. Increased Ratings – Generally Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is prohibited. 38 C.F.R. § 4.14. Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). With respect to the Veteran’s increased rating claim on appeal, the Board has considered the relevant temporal period, including one year prior to his increased rating claim, as well as whether any additional staged rating periods are warranted. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107. When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If the preponderance of the evidence weighs against the claim, it must be denied. Id. 1. Entitlement to a rating in excess of 10 percent for a lumbar spine disability prior to April 25, 2018 The Veteran’s service-connected lumbar spine disability is rated under DC 5242, which falls under the general rating formula for diseases and injuries of the spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is to 90 degrees, extension is to 30 degrees, left and right lateral flexion are to 30 degrees, and left and right lateral rotation are to 30 degrees. 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 rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, General Rating Formula, n. 1. Under the General Rating Formula for Diseases and Injuries of the Spine, 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, the following ratings will apply to lumbar spine disabilities. An evaluation of 20 percent is warranted if forward flexion of the thoracolumbar spine is 60 degrees or less; the combined range of motion of the thoracolumbar spine is 120 degrees or less; or if 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. 38 C.F.R. § 4.71a, DCs 5235-5243. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is limited to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent evaluation is warranted if there is unfavorable ankylosis of the entire spine. Id. Unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine, is fixed in flexion or extension, and the ankylosis results in one or 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a. The provisions of 38 C.F.R. § 4.40 allow for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Under 38 C.F.R. § 4.45, functional loss due to weakened movement, excess fatigability, and incoordination must also be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Furthermore, 38 C.F.R. § 4.59 recognizes that painful motion is an important factor of disability. Joints that are painful, unstable, or misaligned due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011). 1. Entitlement to a rating in excess of 10 percent for lumbar spine disability prior to April 25, 2018 The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against an evaluation in excess of 10 percent for a lumbar spine disability prior to April 25, 2018. In June 2009, the Veteran received emergency room care for chronic back pain, lower back spasms, and “grabbing pain” that had become worse since the night before. The Veteran denied numbness or tingling in his legs. The Veteran submitted a statement in August 2011 asserting that he has had recurring lower back trouble for well over 15 years, and has been treated at the VA hospital several times as well as at a private clinic. He also stated that he has received treatment due to a car accident that has reaggravated his lower back. The Veteran was afforded an in-person VA examination in February 2012. The examiner reviewed the Veteran’s entire VA claims file, and documented that the Veteran had been diagnosed with a lumbosacral strain. The examiner documented that the Veteran had a history of moving heavy objects, was seen in sick call during service, and currently has occasional tightening and spasms in his back. The Veteran reported flare-ups that limit his ability to bend over to tie his shoes and lift small children. Regarding the Veteran’s range of motion, the examiner noted forward flexion to 90 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. The Veteran’s combined range of motion of the thoracolumbar spine was 240 degrees. The examiner noted no objective evidence of painful motion for any of these ranges of motion. The Veteran was able to perform repetitive-use testing with three repetitions with no additional limitation of range of motion, had no functional loss or functional impairment of his thoracolumbar spine, had no localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine, and no guarding or muscle spasms of the thoracolumbar spine sufficient to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. All muscle strength testing was noted to be normal, no muscle atrophy was noted, all reflexes were noted to be normal, and all sensation to light touch was noted to be normal. No imaging studies were performed. The examiner documented that the Veteran did not have radiculopathy, any other neurologic abnormalities, or intervertebral disc syndrome, and did not use any assistive devices. The examiner noted that the Veteran’s thoracolumbar spine condition did not impact his ability to work, and that he was limited to lifting 30 pounds without assistance. The Veteran received treatment at a primary care visit in February 2016. The Veteran complained of lower back pain for years since his time in service, reporting that the pain felt like a “pulling” sensation. He reported pain at a 4 to 7 out of 10 level. The Veteran documented that he works lifting 50 lb bags at work and uses proper technique and a back brace. The medical professional noted that the Veteran experienced a motor vehicle accident three years ago and required a cane at the time due to pain. The Veteran was afforded a physical therapy evaluation in March 2016. The medical professional noted that the Veteran had been diagnosed with lumbar arthritis or spondylosis, and had orders for stretching and strengthening exercises to help with pain management. The Veteran reported that his low back pain had been present for over 20 years, and that his pain is not constant, but acutely occurs about once per month, lasting two to three days and is manageable. The Veteran denied triggering events or aggravating factors, and stated that stretching, medication, and heat relieved pain. The Veteran was working in a manual labor profession at the time of the exam and using a back brace during heavy lifting. The medical professional noted that the Veteran’s back pain was located on the right side of his lower back, was non-radiating, and was not accompanied by any neurological symptoms. The Veteran reported a 0 out of 10 on the pain scale at the time of the evaluation. The medical professional noted that the examination revealed a longer right lower extremity than the left lower extremity. The medical professional’s assessment noted that the Veteran’s symptoms were consistent with a leg length discrepancy and that the Veteran will be issued a heel lift to correct this abnormality, and will follow up with the Veteran on an as-needed basis to adjust the heel lift. The Veteran was afforded an in-person VA examination in November 2016. The examiner reviewed the Veteran’s entire file and noted that the Veteran had been diagnosed with a thoracolumbar spine condition, specifically degenerative arthritis of the spine. The Veteran did not report flare-ups, but reported functional impairment of the thoracolumbar spine due to his limited ability to lift and stand. The range of motion was noted to be abnormal, with pain causing function loss and forward flexion to 80 degrees with pain, extension to 20 degrees with pain, right lateral flexion to 20 degrees with pain, left lateral flexion to 20 degrees with pain, right lateral rotation to 20 degrees with pain, and left lateral rotation to 20 degrees with pain. The Veteran’s combined range of motion of the thoracolumbar spine was 180 degrees. There was evidence of pain with weight bearing, and objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the paraspinal muscles. The Veteran was able to perform repetitive use testing with at least three repetitions, with no additional loss of function or range of motion after three repetitions. The Veteran was not examined immediately after repetitive use over time, and the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner was unable to say without resorting to mere speculation whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over a period of time, explaining that there was no conceptual or empirical basis for making such a determination without direct visualization at the time of the event. The examiner noted that the Veteran did not exhibit guarding or muscle spasms of the thoracolumbar spine sufficient to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, and that his disability interfered with his ability to stand and lift objects. All muscle strength testing was noted to be normal, no muscle atrophy was noted, all reflexes were noted to be normal, and the sensory exam was normal. The examiner noted that the straight raising leg test was normal, and that there was no radiculopathy, ankylosis of the spine, neurologic abnormalities, or intervertebral disc syndrome. The examiner noted that the Veteran uses a back brace regularly as an assistive device, and that imaging studies of the Veteran’s thoracolumbar spine had been performed, which documented arthritis and suggested minimal lumbar levoscoliosis. The examiner further noted that the Veteran had a diagnosis of moderate L3-L4 degenerative disc disease, and that the Veteran’s thoracolumbar spine condition impacted his ability to work, as it limits his ability to lift and stand, although the Veteran denied receiving light or limited duty modifications at work. The examiner reasoned that the Veteran is capable of maintaining his current position as a fork lift operator and would be capable of performing a sedentary position, as he is currently employed full time as a fork lift operator without prescribed duty modifications. The Veteran was afforded a primary care visit in February 2017. The Veteran’s chief complaint was lower back pain present most of the time, made worse by changing position and prolonged standing, and alleviated by laying down, cold compress, and medication. The Veteran reported that this condition makes it somewhat difficult to take care of things. The Veteran was afforded a primary care visit in October 2017. The Veteran’s chief complaint was aggravation of his low back pain. The medical professional noted that the Veteran had tenderness at the lumbar paraspinal musculature and left side mild mid-lumbar tenderness, and will try over-the-counter lidocaine gel and diclofenac, and other medications if no improvement is shown. The Board acknowledges the Veteran’s statement on his June 2014 VA Form 9 that on the day of his VA examination his back was not bothering him, and that he never knows when his back will flare up. The Board further acknowledges the Veteran’s statement that lately his back has been flaring up more frequently and more intensely, that he is limited to lifting no more than 30 pounds, and that he expects to be rated at no less than 30 or 40 percent. The Board finds that the February 2012 and November 2016 VA examinations are adequate and most probative of the issue at hand, because they were based on an in-person examination of the Veteran. The Veteran is competent to report that he experienced back pain. However, to the extent that the Veteran asserts that his symptoms more closely approximate the 30 or 40 percent rating criteria, such assertion does not assist in his obtaining a higher rating, as the clinical findings dictate the evaluation. The Veteran was afforded a Decision Review Officer hearing in January 2017. The Veteran testified that he can no longer jump out of bed and has trouble putting on his shoes. The Veteran also testified that he has been assigned lighter duties at work due to his back pain, and that he has had to change jobs to find work that allows him to sit more than stand during the day, although he is sometimes capable of lifting bags that weigh 50-60 pounds. The Veteran reported that he may miss two or three days of work each month, that his back pain causes him to sleep on the floor about two days each week, that he sometimes has back spasms after performing heavy lifting, and that he walks with a “little hitch in [his] getup” when he is in pain, and that there have been days when his supervisor notices a “little hitch in [his] getup” and tells him that he can leave work if he is in pain. The Veteran also testified that his back pain prevents him from lifting his grandchildren and standing in line at the store. The Veteran is competent to report that he experienced back pain that occasionally impaired his ability to walk. However, to the extent that the Veteran asserts that he suffers from muscle spasms that result in an abnormal gait, such assertion is afforded no probative value, as the Veteran has not been shown to possess the medical expertise to render an opinion regarding this matter. Furthermore, both the February 2012 and November 2016 VA examinations show that the Veteran did not suffer from guarding or muscle spasm of the thoracolumbar spine sufficient to result in an abnormal gait. The Board finds these examinations most probative of the issue at hand. The Board further notes that a March 2016 physical therapy evaluation shows that the Veteran has one lower extremity that is longer than the other, which could potentially impair the Veteran’s ability to walk. After carefully reviewing the evidence of record, the Board finds that a rating in excess of 10 percent is not warranted. The 20 percent rating criteria contemplates forward flexion be limited to 60 degrees or less with a combined range of motion of 120 degrees or less. The February 2012 VA examination shows that the Veteran’s forward flexion is to 90 degrees, with a combined range of motion of the thoracolumbar spine of 240 degrees. The November 2016 VA examination shows that the Veteran’s forward flexion is limited to 80 degrees, with a combined range of motion of the thoracolumbar spine of 180 degrees. The February 2012 and November 2016 VA examinations specifically document that the examiner concluded that the Veteran did not suffer from muscle spasms that result in an abnormal gait or an abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Thus, the Veteran does not meet the rating criteria set forth under 38 C.F.R § 4.71a, DC 5242 for a 20 percent rating. Taking into account the evidence documenting the Veteran’s regular complaints of pain and other findings of functional loss, the Board finds that the evidence does not reflect that such pain and functional limitations resulted in limitation of forward flexion of the thoracolumbar spine of 60 degrees or less; or, the combined range of motion of the thoracolumbar spine of 120 degrees or less; 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. Thus, a rating higher than 10 percent under the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, or the DeLuca or Mitchell criteria is not approximated in the Veteran’s disability picture prior to April 25, 2018. In sum, the preponderance of the evidence is against the award of a rating in excess of 10 percent for the Veteran’s service-connected lumbar spine disability prior to April 25, 2018. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim is denied. See 38 U.S.C. § 5107(b). 2. Entitlement to a rating in excess of 20 percent for a lumbar spine disability as of April 25, 2018 The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against an evaluation in excess of 20 percent for a lumbar spine disability after April 25, 2018. The Veteran was afforded an in-person VA examination in April 2018. The examiner documented that the Veteran had been diagnosed with a lumbosacral strain, degenerative arthritis of the spine, and degenerative disc disease. The examiner noted that the Veteran’s thoracolumbar spine condition had onset in the early 1990’s, and that the Veteran experienced back strain injuries while lifting heavy objects during active duty military service, went to sick call, and was diagnosed with a back strain. The examiner noted that the Veteran’s back condition was getting progressively worse with increasing loss of range of motion and current symptoms including back pain/spasms and loss of range of motion. The Veteran reported flare-ups of the thoracolumbar spine, including tightness, severe sharp pain in the back, and spasms that prevent him from moving. The Veteran reported functional impairment of the thoracolumbar spine, stating that he could not get in and out of chairs, or bend over to tie his shoes, and must use caution when reaching for things. He also reported that he cannot lift heavy objects, run, jump, stand for prolonged periods of time, or walk long distances. The examiner reported that the Veteran’s initial range of motion measurements were abnormal, with forward flexion to 60 degrees with pain, extension to 5 degrees with pain, right lateral flexion to 10 degrees with pain, left lateral flexion to 10 degrees with pain, right lateral rotation to 15 degrees with pain, and left lateral rotation to 15 degrees with pain. The Veteran’s combined range of motion of the thoracolumbar spine was 115 degrees. The examiner stated that the Veteran’s range of motion itself contributed to a functional loss, because the Veteran was unable to perform deep or repetitive back bending motions. The examiner also reported pain causing functional loss, no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, and no evidence of pain with weight bearing. The Veteran was able to perform repetitive-use testing with at least three repetitions, with no additional loss of range of motion after three repetitions. The Veteran was not examined immediately after repetitive use over time, and the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner noted that pain, weakness, fatigability or incoordination significantly limit the Veteran’s functional ability with repeated use over a period of time, with pain causing functional loss. The Veteran reported that after repeated use and flare ups, the loss of range of motion is variable, depending on how strenuously the joint was used, and that at worst, the Veteran would not be able to move at all due to pain. The examination was not conducted during a flare-up, and the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss during a flare-up. The examiner noted that pain, weakness, fatigability, or incoordination significantly limit functional ability during flare-ups, and that pain caused functional loss. The examiner noted that the Veteran experienced muscle spasms that resulted in an abnormal gait or abnormal spine contour, caused by chronic lumbar strain. Additional factors contributing to the Veteran’s disability were noted to be less movement than normal, disturbance of locomotion, interference with sitting, and interference with standing. Muscle strength, reflexes, and sensory abilities were noted to be normal, and no muscle atrophy, radiculopathy, neurologic abnormalities, intervertebral disc syndrome, use of assistive devices, or ankylosis was noted. The examiner noted that imaging studies had been performed and arthritis had been documented. The examiner noted that there was no objective evidence of pain on non-weightbearing exercise, and that the Veteran’s passive range of motion was the same as active range of motion. The examiner opined that additional conditions were found which are directly due to or related to the Veteran’s service connected diagnosis, and that the Veteran’s condition is progressing. The examiner reasoned that the Veteran’s lumbar strain has progressed to include degenerative arthritis and degenerative disc disease, and that this is a result of poor mechanical movements in an effort to compensate for pain, which has caused degeneration over time. After carefully reviewing the evidence of record, the Board finds that a rating in excess of 20 percent is not warranted. The 40 percent rating criteria requires that the Veteran’s forward flexion of the thoracolumbar spine be limited to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. The April 2018 VA examination show that the Veteran’s forward flexion of the thoracolumbar spine is to 60 degrees. The April 2018 VA examination also shows that there is no ankylosis of the thoracolumbar spine. Thus, the Veteran does not meet the rating criteria set forth under 38 C.F.R § 4.71a, DC 5242 for a rating higher than 20 percent. The Board finds the April 2018 VA examination most probative of the issue at hand, because it was conducted by a qualified medical professional and involved an in-person examination of the Veteran. The Board again acknowledges the Veteran’s statement on his June 2014 VA Form 9 that he expects to be rated at no less than 30 or 40 percent. The Veteran is competent to report that he is experiencing back pain. However, to the extent that the Veteran attempts to assert that his symptoms more closely approximate the 30 or 40 percent rating criteria, but such assertion does not assist in his obtaining a higher rating, as the clinical findings dictate the evaluation. Taking into account the evidence documenting the Veteran’s regular complaints of pain and other findings of functional loss, the Board finds that the evidence does not reflect that such pain and functional limitations resulted in limitation of forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Thus, a higher rating than 20 percent under the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, or the DeLuca or Mitchell criteria is not approximated in the Veteran’s disability picture from April 25, 2018 to the present. In sum, the preponderance of the evidence is against the award of a rating in excess of 20 percent for the service-connected lumbar strain. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim is denied. See 38 U.S.C. § 5107(b). A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Caruso, Associate Counsel