Citation Nr: 18156256 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 13-32 193 DATE: December 7, 2018 ORDER Entitlement to an initial rating in excess of 20 percent for degenerative disc disease of the lumbar spine (back condition) is denied. FINDING OF FACT For the entire period on appeal, the Veteran’s back condition was manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, with no showings of ankylosis. CONCLUSION OF LAW The criteria for an initial rating in excess of 20 percent for back condition have not been met. 38 U.S.C. § 1155, 5107(b) (2012); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.7, 4.10, 4.14, 4.21, 4.40, 4.41, 4.45, 4.59. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1991 to July 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded these issues to the RO in September 2017 to obtain another VA examination. A subsequent rating decision on September 2018 granted an increase to the Veteran’s lumbar condition from 10 percent to 20 percent effective August 1, 2012. Regardless of the RO’s actions, the issue remains before the Board because the increased rating was not a complete grant of the maximum benefits available. See AB v. Brown, 6 Vet. App. 35 (1993). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2017). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (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 concern. Fenderson v. West, 12 Vet. App. 119 (1999). 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); see also 38 C.F.R. § 4.59 (2017). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to an initial rating in excess of 20 percent for back condition The Veteran states that he was diagnosed with low back pain while in service. He underwent two low back fusions, and while his back improved after surgery, he still experienced constant mild back pain. In his Notice of Disagreement, the Veteran contends his back pain should be rated at least 60 percent. Lumbar spine disability evaluations are assigned under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent evaluation is warranted for disability of the thoracolumbar spine when there is 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. An evaluation higher of 40 percent is not warranted unless there is forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. An evaluation of 50 requires unfavorable ankylosis of the entire thoracolumbar spine and an evaluation of 100 percent requires unfavorable ankylosis of the entire spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees; extension is 0 to 30 degrees; left and right lateral flexion and rotation are zero 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. The normal ranges of motion for each component of spinal motion provided are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 2 (2017). Diagnostic Codes 5235-5243. For the reasons that follow, the Board concludes that an increased rating is not warranted. In a September 2012 VA examination for the Veteran’s back condition, the examiner diagnosed the Veteran with degenerative disc disease lumbar spine status post fusion L4-L-5, L5-S1, with initial range of motion (ROM) measurements of 65 degrees forward flexion and 25 degrees extension. Right and left lateral flexion were 20 degrees and right and left lateral rotation were 30 degrees. There was no objective evidence of painful motion. Passive ROM was the same as active ROM. Upon repetitive testing, ROM values were unchanged from the baseline values. There was no pain, fatigue, weakness or incoordination noted. The examiner noted functional loss with less movement than normal. There was no localized tenderness, pain to palpation, guarding or muscle spasms. . Another VA examination was conducted in March 2018. At that time, the Veteran reported constant, sharp and aching pain with difficulty with prolonged standing, walking and lifting. The following range of motion results were obtained: forward flexion was 60 degrees, extension was 20 degrees; right and left lateral flexion were 20 degrees; right and left lateral rotation were 15 degrees. The combined range of motion for the thoracolumbar spine was 150 degrees. Pain was noted for all ROM, both active and passive and with weight bearing and non-weight bearing. The Veteran was examined with repetitive use testing and the examiner found additional loss of function and ROM. With repetitive use, forward flexion was 50 degrees, extension 15 degrees, right and left lateral flexion were 15 degrees and right and left lateral rotation were 10 degrees. The Veteran reported that he does not have flare ups. The examiner noted there was no guarding or muscle spasm present. Muscle strength was normal. The straight leg raise test was positive and the examiner found radiculopathy with numbness in the right and left lower extremity. There was no ankylosis, and no use of assistive devices. The examiner noted the Veteran’s back condition impacts his ability to work due to difficulty with prolonged standing, walking and lifting over 20 pounds. The Veteran submitted lay statements from his co-workers, who stated that they observed that the Veteran’s back condition limits his mobility at work and appear to cause pain. The Veteran’s wife also made a statement concerning his day-to-day functional limitations due to pain and his disruption at sleep trying to find a position that does not cause pain. The Board notes the Veteran’s friends and family are competent and credible in their description of what they observe. However, the most probative evidence in terms of evaluating disability for rating purposes consists of those examinations prepared by medical professionals. This evidence demonstrates that the currently assigned evaluation for the Veteran’s low back condition is appropriate. The Board also gives great probative weight to the VA examination because it is based on a review of the Veteran’s in-service and post-service medical records. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). By its terms, the rating criteria contemplate pain and stiffness. 38 C.F.R. § 4.71a. Further, as previously mentioned, the ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from disability, and the basis of disability evaluations is the ability of the body to function under the ordinary conditions of daily life. The Board finds the current 20 percent rating for the service-connected lumbar spine disability adequately portrays any functional impairment and pain the Veteran experiences as a consequence of the use of his spine. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011) and 38 C.F.R. §§ 4.40, 4.45, 4.59. Because the evidence shows forward flexion of the thoracolumbar spine is not limited to 30 degrees or less, and there is no ankylosis of the spine, a rating in excess of 20 percent for lumbar strain is not warranted. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Jaigirdar, Associate Counsel