Citation Nr: 18157794 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 16-60 564 DATE: December 13, 2018 ORDER Entitlement to a disability rating for a lumbar strain higher than 10 percent prior to August 10, 2016, and higher than 20 percent thereafter, is denied. REMANDED Entitlement to a TDIU is remanded. FINDINGS OF FACT 1. Prior to August 10, 2016, the Veteran’s lumbar disability was manifested by forward flexion to 80 degrees at worst, and a combined range of motion of 230 degrees. 2. After August 10, 2016, the Veteran’s lumbar disability was manifested by forward flexion to 51 degrees, at worst. CONCLUSION OF LAW The criteria for an increased rating for a lumbar strain 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, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty with the U.S. Army from August 1997 to August 2001. 1. Entitlement to a disability rating for a lumbar strain higher than 10 percent prior to August 10, 2016, and higher than 20 percent, thereafter. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Additionally, the Court has stated that flare-ups must be factored into an examiner’s assessment of functional loss. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in 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 the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. Pertinent parts of the General Rating Formula for Diseases and Injuries of the Spine are as follows: 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: Unfavorable ankylosis of the entire spine is rated at 100 percent. Unfavorable ankylosis of the entire thoracolumbar spine is rated at 50 percent. Forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine is rated at 40 percent. Forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, or when the combined range of motion of the thoracolumbar spine is 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 is rated at 20 percent. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. Normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees and left and right lateral rotation are 0 to 30 degrees. The normal combined range of motion for the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a. The Veteran’s statements indicate his back pain has worsened over time. Due to his disability, he was unable to go into the construction and home inspection fields because of an inability to lift heavy objects or go into tight spaces. He noted that after attending every appointment, taking medications and participating in physical therapy, he saw no improvement and was told he would likely need surgery. VA treatment records show ongoing complaints of back pain; he was given pain medication and saw some improvement. Records prior to August 2016 indicated the Veteran experienced decreased flexion but did not provided measurements. The Veteran completed physical therapy in November 2016 without improvement; he was referred to pain management. At the start of physical therapy in August 2016, the Veteran’s forward flexion was measured at 51 degrees. An August 2016 x-ray showed narrowing of space at L4-L5 and L5-S1. The Veteran was afforded a VA examination in June 2016 and reported worsening back pain that prevented him from bending, twisting, squatting, and walking long distances. His pain was constant, but exertion caused flare-ups; he had to rest for five to ten minutes to alleviate the pain. On physical examination, range of motion was measured to 80 degrees of forward flexion, 30 degrees of extension, 30 degrees of right and left lateral rotation, and 30 degrees of right and left lateral flexion. There was pain on weight bearing and moderate tenderness on the left, lateral lumbar spine. The Veteran could perform repetitive use testing without any additional loss of function or range of motion. There was no ankylosis, evidence of radiculopathy or decreased muscle strength. Overall, his lumbar spine disability was characterized by decreased movement, disturbance of locomotion, interference with sitting and standing. During the July 2017 VA back examination, the Veteran reported constant lower back pain that was treated with pain medications, muscle relaxers, chiropractic manipulation, and physical therapy. Range of motion was measured to 70 degrees of forward flexion, 30 degrees of extension, 30 degrees of right and lateral flexion, and 30 degrees of right and left lateral rotation. Pain was noted on rest/non-movement on forward flexion; the Veteran also experienced moderate tenderness in the paralumbar muscles. Repetitive use testing caused additional loss in range of motion; forward flexion was measured to 50 degrees and all other movements were normal. There was muscle spasm of the lumbar spine not resulting in abnormal gait or spinal contour. Based on the foregoing, the Board finds that an increased rating is not warranted at any time during the appeal period. As noted above, any painful or limitation of motion is already contemplated by the current 10 and 20 percent ratings—even when considering the Veteran’s limited reports of flare-ups. Prior to August 2016 The Board has considered the findings from the June 2016 VA examination and treatment records collected during the appeal period. The examination report shows forward flexion limited to 80 degrees at worst and a combined range of motion of 230 degrees. Medical records show no evidence of ankylosis or flexion worse than 60 degrees in the thoracolumbar spine. These findings are consistent with the 10 percent rating already assigned for the noted appeal period. After August 2016 The August 2017 examination report shows forward flexion limited to 50 degrees at worst and a combined range of motion of 200 degrees. Medical records show no evidence of ankylosis or flexion worse than 51 degrees in the thoracolumbar spine. These findings are consistent with the 20 percent rating already assigned. Consideration has also been given to the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59. The Board finds the previous 10 percent and current 20 percent ratings for the service-connected lumbar spine disability adequately portray any functional impairment, pain, and weakness that the Veteran experiences as a consequence of use of his spine. See DeLuca, supra; see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011) and 38 C.F.R. §§ 4.40, 4.45, 4.59. No other effects, including further decreased range of motion, incoordination, or fatigue were described. The Board finds that because the Veteran himself has adequately described the severity, frequency, and duration of his flare-ups and their functional impact, further development is unnecessary. Sharp v. Shulkin, 29 Vet. App. at 32. The Board notes that the Veteran is competent to report that his low back disability is worsening. However, the more probative evidence demonstrates that the currently assigned evaluations for the Veteran’s low back disability are appropriate and consistent with the lay and medical evidence of record. In sum, the Board finds that a rating higher than10 percent prior to August 10, 2016, and 20 percent thereafter for the Veteran’s lumbar spine disability is not warranted. REASONS FOR REMAND 1. Entitlement to a TDIU. The Board finds it necessary to remand the issue of entitlement to a TDIU for initial development and consideration, in light of the Veteran’s statements that he was unable to perform work functions in construction and as a home inspector and was having difficulty doing his duties as a postal worker. The August 2017 examiner state his disability caused difficulty with heavy lifting and frequent bending. If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether TDIU is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the Board will remand for consideration of a TDIU rating under Rice. The matter is REMANDED for the following action: 1. Send the Veteran an application for a TDIU (VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability). (Continued on the next page)   2. Conduct any development needed to adjudicate the issue of entitlement to a TDIU. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Price, Associate Counsel