Citation Nr: 18129093 Decision Date: 08/23/18 Archive Date: 08/23/18 DOCKET NO. 15-43 688 DATE: August 23, 2018 ORDER Entitlement to a disability rating in excess of 10 percent for lumbar strain is denied. FINDING OF FACT Throughout the appeal period, the Veteran’s lumbar strain was, at most, manifested by flexion to 80 degrees, extension to 30 degrees, and right and left lateral flexion and rotation to 30 degrees. There was no evidence of ankylosis. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for lumbar strain have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5237 (2017). REFERRED The issue of entitlement to an earlier effective date earlier than August 8, 2006 for the initial grant of service connection for lumbar strain was raised in a November 2015 statement. Effective March 24, 2015, when a claimant submits a communication indicating desire to file a claim for benefits, but the communication does not meet the standards of a complete claim for benefits, the communication will be considered a request for an application form for benefits under 38 C.F.R. § 3.350 (a). 38 C.F.R. § 3.155(a); 79 Fed. Reg. 57,660 (Sept. 25, 2014) (codified in 38 C.F.R Parts 3, 19, and 20). When such a communication is received, the AOJ shall notify the claimant of the information needed to complete the application form or form prescribed by the Secretary. 38 C.F.R. § 3.155(a) 2016); 79 Fed. Reg. 57,660 (Sept. 25, 2014). A complete claim on an application form designed for the purpose is required for all types of claims. 38 C.F.R. § 3.155(d). This request is referred to the AOJ for appropriate action to be determined by the AOJ in accordance with the revised regulations. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1994 to February 1997 and from October 1997 to January 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. Jurisdiction is with the RO in Houston, Texas. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to a disability rating in excess of 10 percent for lumbar strain Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating 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. Where there is a question as to which of two evaluations shall be applied, 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. The veteran’s entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509 - 10 (2007). The Veteran’s lumbar strain has been currently evaluated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under DC 5237, 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. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine at 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Finally, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71 (a). When rating diseases and injuries of the spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2017). 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 forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion 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, left and right lateral flexion, and left and right rotation. 38 C.F.R. § 4.71a, Plate V. Throughout the appeal period, the clinical evidence, to include VA treatment records and September 2014 and May 2016 VA examinations, do not demonstrate that the Veteran’s thoracolumbar spine manifested flexion limited to 60 degrees, combined range of motion of the thoracolumbar spine limited to 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, the criteria for the next higher 20 percent disability rating. In fact, they show that, at worst, the Veteran’s thoracolumbar flexion was limited to 80 degrees and combined range of motion was limited to 230 degrees. They also show no muscle spasm or guarding, ankylosis, intervertebral disc syndrome, arthritis, radiculopathy, or neurologic abnormalities. Even after considering functional loss due to pain and other factors pursuant to 38 C.F.R. §§ 4.40, 4.45 (2017) and DeLuca v. Brown, 8 Vet. App. 202 (1995), the Board finds that throughout the appeal period the Veteran’s lumbar strain did not more nearly approximately flexion limited to 60 degrees or combined range of motion limited to 120 degrees. At the examinations, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiners. During the most recent May 2016 VA examination, the Veteran described intermittent low back discomfort. He furthered that felt a dull achiness and stiffness after being on his feet all day. He denied tingling, radicular pain, and flare-ups. The Board finds that a higher disability rating is not warranted based on limitation of motion, even when considering the functional effects of pain, to include during flare-ups (of which the Veteran has denied) and after repetitive use. The Board further finds that the Veteran’s own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of impairment required for an evaluation in excess of 10 percent. As the Veteran’s lumbar strain did not result in radiculopathy or other neurologic abnormalities, or in intervertebral disc syndrome, other diagnostic codes specific to these disabilities are not for application. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent for the Veteran’s lumbar strain disability for any period of the appeal. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Ko, Associate Counsel