Citation Nr: 19181971 Decision Date: 10/29/19 Archive Date: 10/29/19 DOCKET NO. 17-48 163A DATE: October 29, 2019 ORDER Entitlement to a 20 percent rating, but no higher, for a lumbar spine disability is granted. FINDING OF FACT The Veteran’s lumbar spine disability results in forward flexion limited to 45 degrees and combined range of motion limited to 120 degrees during flare-ups and with repeated use over time. CONCLUSION OF LAW The criteria for a 20 percent rating, but no higher, for a lumbar spine disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2019).   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from March 2002 to January 2005 This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an June 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Increased Rating — Lumbar Spine Disability The Veteran claims that her service-connected lumbar spine disability is worse than what is currently rated. The Veteran states that her symptoms render her unable to sit, stand, or do high impact exercise, such as running. A February 2015 VA X-ray of the Veteran’s thoracolumbar spine showed L-5 spondylolysis with resultant grade 2 anterolisthesis of L-5 on S1 with associated degenerative disc disease at L5-S1. A May 2015 magnetic resonance imaging (MRI) showed grade 2 anterolisthesis at L5/S1 with stenosis of the bilateral foramina and a mild disc bulge at L4/L5. In July 2015, the Veteran submitted a back condition disability benefits questionnaire (DBQ) from Dr. M.V., a private physician. The DBQ noted that the Veteran reported experiencing severe pain and difficulty ambulating. It was noted that initial range of motion was normal, that the Veteran was able to perform repetitive use testing, and that pain contributed to functional loss. The physician indicated that during flare-ups or with repeated use over time, range of motion was reduced by 50 percent in all planes. Additionally, the physician noted standing, sitting, and walking times were diminished. The Veteran’s muscle strength was 4/5 when pain was severe. Her spinal contour was normal, and she had a normal gait with no muscle spasm or guarding. At a July 2017 VA examination, the Veteran reported a history of low back pain radiating to the right lower extremity. She noted that the pain almost made her cry and that the pain was so severe at times it “freezes” her and prevents her from walking and functioning. Severe pain was also reported in the low back after prolonged sitting. The diagnosis was lumbar strain with grade 1 spondylolisthesis L5-S1. Range of motion of the thoracolumbar spine was from 0 degrees of extension to 75 degrees of forward flexion. Lateral flexion was limited to 25 degrees bilaterally; right lateral rotation was limited to 25 degrees; and left lateral rotation was limited to 30 degrees. There was pain noted on examination that caused functional loss. The examiner noted tenderness of the lumbar spine, right sacroiliac joint, and paraspinal muscles on the right. There was no change in range of motion with repetitive use testing, no guarding or muscle spasms of the thoracolumbar spine, and no x-ray evidence of arthritis. During the July 2017 VA examination, the Veteran reported that she experienced flare-ups with increased physical exertion, such as cleaning the house, and after prolonged sitting. She stated that flare-ups lasted two to three days. The examiner noted that the Veteran was not being examined during a flare-up and that was unable to describe any additional functional impairment in terms of range of motion without resorting to speculation. The Board has also considered VA outpatient records pertinent to this period. However, a review of the treatment notes of record do not show the Veteran to have symptoms worse than those reported at her VA examinations In this case, the Board finds that a 20 percent rating, but no higher, is warranted for the Veteran’s service-connected low back disability based on the July 2015 private physician’s estimation that range of motion is reduced by 50 percent during flare-ups or with repeated use over time. Normal forward flexion of the thoracolumbar spine is to 90 degrees, and normal combined range of motion of the thoracolumbar spine is 240 degrees. See 38 C.F.R. § 4.71a, General Rating Formula for Disease and Injuries of the Spine (General Rating Formula), Note 2. Forward flexion limited to 45 degrees or combined range of motion limited to 120 degrees warrants a 20 percent rating under the General Rating Formula. Based on the lay and medical evidence, the Board finds that the disability more nearly approximates the criteria for a 20 percent rating. A higher, 40 rating is not warranted because the evidence does not indicate that forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or is functionally equivalent to favorable ankylosis of the thoracolumbar spine, even during flare-ups or with repeated use over time. In addition, the Board has considered other appropriate diagnostic codes, particularly Diagnostic Code 5243 for intervertebral disc syndrome (IVDS). In this regard, there is no evidence, either lay or medical, of incapacitating episodes as contemplated by the regulation. Accordingly, the Board finds that a higher rating under the Formula for Rating IVDS Based on Incapacitating Episodes is not warranted for the Veteran’s lumbar spine disability. The Board has also considered whether any associated objective neurologic abnormalities warrant a separate evaluation. See 38 C.F.R. § 4.71a, General Rating Formula, Note 1. During the pendency of the appeal, the Agency of Original Jurisdiction (AOJ) granted service connection for radiculopathy of the bilateral lower extremities. The Veteran has not indicated that she disagrees with the ratings assigned for radiculopathy and the evidence does not indicate that she has any other associated abnormalities. In sum, while there is no disputing that the Veteran experiences lumbar spine pain, there is nothing in the record to suggest that the disability results in functional impairment equivalent to forward flexion limited to 30 degrees or less, or favorable ankylosis of the entire spine, at any point during the appeal period. 38 C.F.R. § 4.71, Code 5237. Consequently, a 20 percent rating, but no higher, is warranted throughout the appeal period. Sonja A. Mishalanie Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ikechukwu Umez-Eronini, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.