Citation Nr: 18158037 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-60 926 DATE: December 14, 2018 ORDER An initial rating more than 10 percent from August 31, 2012 and continuing thereafter for the Veteran’s service-connected low back disorder, to include a lumbosacral strain, L5-S1 spondylolisthesis with degenerative joint disease and spinal stenosis is denied. FINDING OF FACT During the entirety of the rating period on appeal, the Veteran’s low back disorder, at worst, was manifested by flexion at 80 degrees with a combined range of motion of 200 degrees and pain on motion. CONCLUSION OF LAW The criteria to establish an initial rating more than 10 percent during the entirety of the rating period on appeal for a low back disorder have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code (DC) 5242 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Coast Guard from August 1978 to July 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision of the Roanoke, Virginia Regional Office (RO). Low back disorder Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). When there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2017). 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 the residuals of injury or disease, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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. 38 C.F.R. § 4.71a, DC 5242 (2017). A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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. Id. A 30 percent rating is warranted forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. Id. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. There are also several note provisions associated with DCs 5242-5237. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion and are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, and left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in an individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. Id. Note (4): Round each range of motion measurement to the nearest five degrees. Id. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one 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. Id. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments; except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Id. The Veteran’s back disorder is rated 10 percent disabling from August 31, 2012 and continuing thereafter under DC 5242. A December 2011 private treatment record reflects that the Veteran underwent a spinal fusion, bone graft and spinal decompression. In an August 2012 private treatment record, the Veteran reported experiencing lower back pain and trouble with bending. A physical examination of the thoracolumbar spine revealed normal kyphosis, appearance and no scoliosis. The private examiner indicated that the Veteran had full range of motion – without providing the degrees – of his cervical, thoracic and lumbar spine. In a September 2013 private treatment record, the Veteran reported experiencing lower back pain. The private examiner indicated that the Veteran’s lumbar spine showed limited extension; however, the Veteran could flex down to his mid-thigh, and rotation to the left and right side was normal. In June 2014, the Veteran was afforded a VA examination. The Veteran reported experiencing daily back pain, limited motion and trouble with bending, lifting and carrying. He also reported that his flare-ups did not impact the function of his thoracolumbar spine. Range of motion for the thoracolumbar spine was flexion at 80 degrees, extension at 10 degrees, right lateral flexion at 25 degrees, left lateral flexion at 25 degrees, right lateral rotation at 30 degrees and left lateral rotation at 30 degrees. The combined range of motion was 200 degrees. There was pain on motion. The Veteran could perform repetitive-use testing with at least three repetitions with no additional loss in range of motion. The examiner noted that the functional impairment of the Veteran’s thoracolumbar spine was manifested by less movement than normal, pain on movement and lack of endurance. Muscle strength was normal. There was no localized tenderness, pain on palpation, muscle spasms, guarding, muscle atrophy, radiculopathy, neurological abnormalities, intervertebral disc syndrome, or other pertinent physical findings. The Veteran did not use assistive devices. In his November 2014 notice of disagreement, the Veteran indicated that his low back disorder has rendered him “completely disabled.” However, a September 2014 social security administration (SSA) record indicates that the Veteran can occasionally lift and carry 20 pounds, and stand, walk and sit for 6 hours. In an April 2018 statement, the Veteran’s friend reported having observed the Veteran experience back pain, trouble sleeping and sitting for prolonged periods. He also reported having observed the Veteran experience trouble performing house work. In his November 2018 brief, the Veteran reasserted his belief that he is entitled to a higher disability rating for his low back disorder. The Veteran has not indicated, and the competent medical evidence does not suggest that the Veteran’s lower back disorder has worsened since the June 2014 VA examination. See Counts v. Brown, 6 Vet. App. 473, 478-79 (1994). The Board finds that the medical evidence is not too old to adequately evaluate his low back disorder. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (another VA examination is not warranted based on the mere passage of time). (Continued on the next page)   A preponderance of the evidence is against a finding of an initial rating more than 10 percent from August 31, 2012 and continuing thereafter. Private treatment records indicated that the Veteran’s thoracolumbar spine had a normal kyphosis, appearance and no scoliosis. In addition, the private treatment records noted full range of motion and limited extension – without providing the degrees – concerning the thoracolumbar spine; however, it was noted that the Veteran could flex down to his mid-thigh, and rotation to the left and right side was normal. Furthermore, the June 2014 VA examination revealed that the range of motion for the thoracolumbar spine was flexion at 80 degrees with a combined range of motion of 200 degrees. Moreover, the April 2018 buddy statement restated the Veteran’s physical limitations indicated in previous medical records. Therefore, an initial rating more than 10 percent is not warranted and the claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cohen, Associate Counsel