Citation Nr: 18155414 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 15-44 685 DATE: December 4, 2018 ORDER Entitlement to a disability rating higher than 20 percent for lumbar strain superimposed on degenerative instability (lumbar spine disability) is denied. FINDING OF FACT For the entire period on appeal, the Veteran’s lumbar spine disability has been productive of, at most, forward flexion greater than 30 degrees, but not greater than 60 degrees, and no ankylosis. CONCLUSION OF LAW The criteria for a rating higher than 20 percent for lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.71a, Diagnostic Code (DC) 5237 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably from March 1978 through January 1984, October 1986 through March 1993, and June 1977 through December 1977. This case is before the Board of Veterans’ Appeals (the Board) on appeal from August 2012 rating decision of the Department of Veterans Affairs (VA). In December 2015, the Veteran requested a hearing by live videoconference at a local office. However, the Veteran cancelled his request for hearing in November 2018. Increased Rating Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2017). 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 their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the action. 38 C.F.R. § 4.40 (2017). The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling, and pain on movement. 38 C.F.R. § 4.45 (2017). Additionally, when evaluating a musculoskeletal disability, VA must consider functional loss due to pain, weakness, excess fatigability, or incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); 38 C.F.R. §§ 4.40, 4.45. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. See Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011); Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); see also 38 C.F.R. § 4.59 (2017). Entitlement to a disability rating higher than 20 percent for lumbar strain superimposed on degenerative instability Currently, the Veteran’s lumbar spine disability is rated at 20 percent under Diagnostic Code (DC) 5237. The Veteran contends that this rating does not adequately reflect the severity of his lumbar spine disability. The General Rating Formula for Diseases and Injuries of the Spine assigns evaluations with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of the injury or disease. The General Rating Formula for Diseases and Injuries of the Spine provides that a 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the 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. 38 C.F.R. § 4.71a, DC 5237. A 40 percent evaluation is warranted if there is forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is granted if the Veteran has unfavorable ankylosis of the entire spine. Id. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months warrants a 10 percent evaluation. A 20 percent evaluation is warranted where there are incapacitating episodes totaling at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is warranted where there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted where there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. On VA examination in May 2012, the Veteran had a diagnosis of lumbosacral strain. Range of motion measurements were as follows: forward flexion to 90 degrees or greater with objective evidence of painful motion at 90 degrees; extension to 20 degrees or greater with objective evidence of painful motion at 20 degrees; right lateral flexion to 30 degrees or greater with no objective evidence of painful motion; left lateral flexion to 30 degrees or greater with no objective evidence of painful motion; right lateral rotation to 30 degrees or greater with no objective evidence of painful motion; and left lateral rotation to 30 degrees or greater with no objective evidence of painful motion. The Veteran reported periodic flare-ups of pain that were attributed to bending over to pick up objects. There was no functional loss or additional impairment of the lumbar spine noted. The Veteran did not have palpable tenderness along the paraspinal muscular groups, evidence of muscle spasms or guarding of the lumbar spine. Muscle strength was normal with no muscle atrophy. Additionally, imaging studies conducted of the lumbar spine showed no arthritis. Finally, he had no functional loss or impairment of the thoracolumbar spine. On VA examination in April 2015, the Veteran had diagnoses of lumbar strain, degenerative disc disease, and spinal bifida occulta. He reported that due to his lumbar spine disability, he could not walk, sit, or stand for more than thirty minutes. He reported occasional pain due to flare-ups, which was described as a brief increase in pain sometimes associated with numbness down his legs. However, he reported that all symptoms would resolve in a minute or two. Range of motion measurements were as follows: forward flexion to 50 degrees, extension to 20 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. There was no objective evidence of lumbar paraspinal tenderness. Additionally, there was no additional loss of function or range of motion after three repetitions. Functional loss was noted to result in pain, as well as the following additional limitations in range of motion: forward flexion to 40 degrees, extension to 20 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 did not have localized tenderness, guarding, or muscle spasm of the thoracolumbar spine. Muscle strength was normal, and the Veteran did not have muscle atrophy. He had no ankylosis of the spine or IVDS, and did not require the use of any assistive device. Also of record are VA and private outpatient treatment records that show the Veteran receives consistent follow-up treatment for his lumbar spine disability. Imaging reports in May 2015 showed facet arthritis. However, these records provide no indication that the Veteran’s lumbar spine symptomatology is worse than what is reflected in the VA examination reports of record. Finally, of record are the Veteran’s lay statements concerning his symptomatology. In an October 2011 Notice of Disagreement, the Veteran indicated that his lumbar spine disability continued to worsen and doing every-day activities were becoming more painful. He further indicated that he had to take time off from work due to back pain and was having more problems sleeping. In April 2015, lay statements were submitted noting that the Veteran has difficulties with normal activities due to back pain, including standing and sitting for long periods. He also had difficulty lifting heavy objects. The Veteran’s lumbar spine disability does not warrant a rating higher 20 percent. To meet the criteria for the next highest rating, there would need to be evidence of forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, DC 5237. The Board notes that there is no evidence of ankylosis. At most, the Veteran was noted to have functional loss due to pain that resulted in limitation of forward flexion to 50 degrees. Even considering his reports of flare-ups and limitation of motion, his functional loss does not more nearly approximate forward flexion of the thoracolumbar spine to 30 degrees or less. Additionally, the most probative evidence does not show that the Veteran has neurological manifestations due to his low back disability. Although he reported some numbness in his lower extremities, neurological testing has been normal and he has not been found to have any functional impairment based on his occasional reports of numbness in the bilateral lower extremities. In fact, he reported that the pain with numbness lasts minutes. Finally, the Veteran does not have IVDS, nor does the record reflect any periods of doctor-prescribed bedrest that would warrant a higher rating. In sum, the Board finds that the preponderance of the evidence is against a rating higher than 20 percent for the Veteran’s lumbar spine disability. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.B. Mmeje, Associate Counsel