Citation Nr: 18160946 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 14-09 409 DATE: December 28, 2018 ORDER Entitlement to an increased rating in excess of 10 percent prior to April 17, 2017 for chronic lumbar strain is denied. Entitlement to an increased rating of 20 percent, but no higher, from April 17, 2017 for chronic lumbar strain is granted. FINDINGS OF FACT 1. Prior to April 17, 2017, the Veteran’s lumbar strain manifested a limitation of flexion to 70 degrees with no abnormal spinal curvatures. 2. With resolution of the doubt in favor of the Veteran, from April 17, 2017, the Veteran’s lumbar strain manifested a limitation of flexion to 60 degrees, at worst. CONCLUSIONS OF LAW 1. Prior to April 17, 2017, the criteria for an increased rating in excess of 10 percent disabling for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.71a, Diagnostic Codes 5242, 5243 (2017). 2. As of April 17, 2017, the criteria for a 20 percent rating, but no higher, for a lumbar spine disorder have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.71a, Diagnostic Codes 5242, 5243 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1980 to June 2002. This matter was remanded for further development in January 2018. A separate rating has been assigned for neurological impairment of the right lower extremity and that matter is not at issue herein. 1. Entitlement to an increased rating in excess of 10 percent prior to April 2, 2018 and in excess of 20 percent thereafter for chronic lumbar strain Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service connected disorder. 38 U.S.C. § 1155. The evaluation of a service-connected disorder requires a review of a veteran’s entire medical history regarding that disorder. 38 U.S.C. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Hart v. Mansfield, 21 Vet. App. 505 (2007). Such separate disability ratings are known as staged ratings. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to the absence of part, or all, of the necessary bones, joints, and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant 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. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran contends that he is entitled to a higher evaluation for his service-connected lumbar spine disability, which is currently assigned staged ratings pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5237. Disabilities of the spine are evaluated under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula, 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, a 10 percent rating is warranted when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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 at the height. A 20 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; 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. A 40 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). For VA compensation purposes, normal range of motion for the thoracolumbar spine is 90 degrees of forward flexion, 30 degrees of extension, 30 degrees of left and right lateral flexion, and 30 degrees of left and right lateral rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees, consisting of the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. 38 C.F.R. § 4.71a, General Rating Formal, Note (2) and Plate V. The Veteran filed a claim for an increased rating for his low back injury in October 2010. The Veteran submitted treatment records showing a diagnosis of degenerative disc disease, lumbar spondylosis, broad based disc protrusions, and degenerative facet arthropathy. The physician noted tenderness. In an assessment for range of motion for pain, “straight leg raising and sitting root tests [were] negative bilaterally; Patrick's test, pelvic torque test and Fortin finger test [were] negative bilaterally.” The Veteran was afforded a VA examination of his spine in April 2011. The Veteran reported that the pain from his lumbar strain has worsened. He had a mild to moderate pain that is there intermittently and occasionally radiated down the lower extremities. The Veteran denied stiffness and flare-ups. He was able to walk and stand, although when the pain is present, it was troublesome. As a salesperson, he spent a lot of time driving, which caused pain but he was still able to do his job adequately. The Veteran denied incapacitating episodes requiring bedrest. Upon physical examination, he had no gross tenderness, spasm, or weakness. He had a slightly kyphotic posture with normal gait pattern. There were no limitations on standing or walking and no unfavorable ankylosis. Range of motion testing showed 90 degrees of flexion with pain at 80 degrees, 30 degrees of extension, bilateral rotation, and bilateral lateral flexion with pain at 20 degrees. The Veteran was able to perform repetitive use testing with no additional pain or limitations. The examiner diagnosed lumbar strain. In a June 2011 rating decision, the RO continued the Veteran's 10 percent rating for his lumbar strain. The Veteran filed a notice of disagreement appealing this rating in April 2012. At a September 2012 VA examination, the Veteran reported constant low back pain with prolonged sitting. He stated that some days he has a hard time standing up straight. The Veteran reported flare ups two to three times per week with a duration of a half to a full day. Range of motion testing showed flexion was limited to 70 degrees, extension was to 30 degrees, bilateral lateral flexion was to 30 degrees, and bilateral rotation was to 30 degrees, with pain at the end of all ranges. The Veteran was able to perform repetitive use testing with no additional limitations. The examiner noted functional loss due to less movement than normal and pain on movement. The Veteran had tenderness to palpation of the lumbosacral spine and bilateral paraspinal muscles. The examiner also noted guarding that did not result in abnormal gait or spinal contour. The examiner found no incapacitating episodes requiring bedrest. The examiner noted that his disability impacted his work as there are times where he has increased pain but he works through the pain. In his March 2014 substantive appeal, the Veteran stated that his back condition is slowly worsening and he has continuing and chronic pain. An April 17, 2017 private treatment record showed that the Veteran reported back pain at a level 8 out of 10. The Veteran's chiropractor observed decreased lumbar flexion with pain, extension with pain, bilateral rotation with pain, and bilateral lateral flexion with pain. He also noted moderate edema over his entire lower back. During the examination, the Veteran was moderately guarded and the Veteran presented with moderate hypertonicity over his entire lower back. The Veteran appeared at a Board hearing in May 2017. He testified that he experiences flare ups of pain in his lower back with bending and driving, and sometimes upon awakening. The Veteran underwent a VA examination of the spine in April 2018. The examiner noted a diagnosis of lumbar strain. The Veteran reported that in the last 18 months, he was seen his primary care doctor, chiropractor, and pain specialist for worsening pain. His symptoms were described as an 8 out of 10 to 10 out of 10 upon awakening and lessening to a 6 or 7 out of 10 throughout the day. The pain is sharp, shooting, with muscle cramps. He reported flare ups where his back pain is severe that he cannot function. These flare ups occur five days per month. He is given a work objective in advance and allowed to schedule his work days according to his ability to physically function. Regarding functional impairment, the Veteran reported limitations with driving, lifting, flexing, standing, and walking for prolonged periods. Range of motion testing showed forward flexion limited to 60 degrees, extension to 30 degrees, bilateral lateral flexion to 30 degrees, and bilateral rotation to 30 degrees. Pain was noted in all ranges. The Veteran was able to perform repetitive use testing with no additional limitations. The Veteran had muscle spasm and guarding not resulting in abnormal gait or abnormal spinal contour. He had swelling, disturbance of locomotion, and interference with standing. The examiner noted that the Veteran did not have a diagnosis of intervertebral disc syndrome. Regarding functional impact on his ability to work, the examiner stated that “when the pain is severe, it limits his ability to drive greater than one hour. He needs help lifting items and flexing down to the floor. Standing and walking aggravates the back and limits the amount of work the Veteran can achieve. The Veteran has to delegate work tasks to fellow employees because his back pain limits his movement.” The Veteran has lost 0 to 1 week of work time in the last 12 months. An October 2018 rating decision increased the Veteran’s evaluation of the lumbar strain to 20 percent disabling, effective April 2, 2018, the date of the VA examination. Upon review of the evidence of record, the Board finds that a rating in excess of 10 percent is not warranted prior to April 17, 2017 for the Veteran’s lumbar strain. The April 2011 and September 2012 VA examinations showed flexion to 70 degrees, at worst, and mild effects on the Veteran’s employment. There was no evidence of flexion limited to less than 60 degrees, abnormal spinal curvature, or incapacitating episodes of more than two weeks. The Veteran’s pain and functional limitation were considered in the 10 percent rating. Therefore, no higher rating is warranted prior to that time. Regarding the period from April 17, 2017, the Board notes that an increased 20 percent rating was assigned effective April 2, 2018, the date of the VA examination showing flexion limited to 60 degrees. However, although the Veteran's chiropractic treatment records do not contain specific range of motion findings expressed in degrees, the Veteran's reported symptoms and worsening of his lumbar strain at his April 17, 2017 chiropractic visit are consistent with the symptoms reported at the April 2018 VA examination. Specifically, the chiropractor noted decreased lumbar flexion with pain. Therefore, with resolution of the doubt in favor of the Veteran, the higher 20 percent rating, is warranted as of that date. Additionally, the Board finds that a rating in excess of 20 percent rating is not warranted for the Veteran’s back disorder at any time. At no point during the period on appeal was the Veteran’s flexion of the thoracolumbar spine 30 degrees or less and there was no evidence of ankylosis or incapacitating episodes. Therefore, a higher rating is not warranted. The Board has also considered whether factors including functional impairment and pain as addressed under 38 C.F.R. §§ 4.40 and 4.45 would warrant higher ratings for the Veteran’s lumbar spine disorder. However, the VA examinations documented the Veteran limitations due to pain or repetitive use testing and those limitations are reflected in the currently assigned ratings.   Based on the foregoing, the Board finds that disability ratings in excess of 10 percent prior to April 17, 2017, in excess of 20 percent thereafter for a lumbar spine disorder are not warranted. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Shana Z, Siesser, Counsel