Citation Nr: A19001631 Decision Date: 09/30/19 Archive Date: 09/27/19 DOCKET NO. 190906-32392 DATE: September 30, 2019 ORDER Entitlement to an increased rating, higher than 20 percent, from February 24, 2019 to June 21, 2019, for L2 and L3 compression fracture with degenerative arthritis and degenerative disc disease of the lumbar spine. is denied. FINDING OF FACT From February 24, 2019 to June 21, 2019, the Veteran’s back condition was manifested by symptoms including pain, limitation of flexion to 55 degrees, and combined range of motion of 170 degrees, without evidence of associated neurological impairment. CONCLUSION OF LAW The criteria for entitlement to an increased rating, higher than 20 percent, for L2 and L3 compression fracture with degenerative arthritis and degenerative disc disease of the lumbar spine, have not been met. 38 U.S.C. §§ 1155, 5107, 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1961 to March 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran contends that he is entitled to an increased rating for his service-connected back condition. 1. Entitlement to an increased rating higher than 20 percent, from February 24, 2019 to June 21, 2019, for L2 and L3 compression fracture with degenerative arthritis and degenerative disc disease of the lumbar spine. Service connection was established for the Veteran’s back disability in July 2011 with an effective date in August 2010. In February 2019, the Veteran filed his intent to file a claim, and in March 2019, he filed his formal claim for an increased evaluation. Based on an April 2019 VA examination, with an addendum opinion provided in June 2019, the rating was increased from 10 percent to 20 percent, effective March 2019. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitation Episodes). Ratings under the General Rating Formula for Disease and Injuries of the Spine are made 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. The Veteran’s back condition has been evaluated under Diagnostic Code 5235-5242, which is rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.25. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for 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 of the height. A 20 percent disability 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 disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Note (2) provides that, for VA compensation purposes, 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 normal combined range of motion of the thoracolumbar spine is 240 degrees. The Veteran was provided with a VA examination in April 2019. The Veteran reported that pain was located in the lower, mid-back and that it will rarely radiate into the right thigh causing numbness. Regarding tenderness on palpation, it was noted that, “lumbar paraspinal muscles are tight and spasming with tenderness to palpation bilaterally. Mildly tender to palpation over the L2, L3, and L5 vertebrae.” Straight leg raising test results were negative bilaterally. Flare-ups were reported by the Veteran that “do not last longer than 4 hours and he denies ever having a flare-up lasting for 24 or more hours.” Forward flexion was noted to be 55 degrees. Extension, right lateral flexion, and left lateral flexion were noted to be 25 degrees. Right lateral rotation and left lateral rotation were both noted to be 20 degrees. Evidence of pain with weight bearing was noted. There was no additional loss of range of motion following repetitive use testing. There was no ankylosis and no IVDS. In June 2019, an addendum opinion to the April 2019 VA examination was provided. In this opinion, the examiner stated, “with repeated use over time, the veteran’s range of motion testing was NOT medically consistent with the Veteran’s statements describing functional loss with repetitive use over time.” The examiner further indicated his opinion that the ROM measurements after repetitive use would not change from those noted on the examination. Applying the General Rating Formula for Diseases and Injuries of the Spine results in a 20 percent rating during this time period. Forward flexion of 55 degrees was noted during the examination. For the evaluation of flexion alone, flexion of 30 degrees or less would be required for the next highest rating of 40 percent. The combined range of motion was 170 degrees, which is within the range of motion contemplated at the 10 percent rating of greater than 120 degrees but not greater than 235 degrees. The Veteran’s lay statements regarding back pain and records showing treatment for back pain have been reviewed. However, the symptom of pain associated with the Veteran’s back condition is contemplated by the rating criteria. In the September 2019 notice of disagreement, the Veteran notes that he has used a cane since July 2019. However, use of a cane was noted on the April 2019 examination and was first noted as early as February 2011. The Veteran also indicated the following: “I’m not familiar what the medical term ‘thoracolumbar spine 30 degrees or less” means. If it means my ability to bend forward 30 degrees without noticeable discomfort, I strongly disagree.” It appears that the Veteran is referring to the finding in the rating decision which noted, “forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.” As noted above, painful motion is contemplated by the rating criteria. The measure of forward flexion, as defined by the note in 38 C.F.R. § 4.71a, is what the rating criteria require. Normal forward flexion is to 90 degrees. It is the inability to bend forward at a particular degree of motion that is contemplated by the criteria – not the presence of absence of discomfort. The VA examination noted forward flexion to 55 degrees. Some impairment in range of motion is clearly demonstrated. As explained in more detail above, this range of motion falls within the rating criteria of 20 percent. To the extent that the General Formula for rating back disabilities requires any associated neurological impairment to be considered, the evidence does not support a finding of radiculopathy, bowel or bladder impairment, or other neurological impairment. Therefore, no separate rating is appropriate in this case. (CONTINUED ON NEXT PAGE) Overall, the record supports an evaluation of 20 percent, and not higher during the time period on appeal. As such, entitlement to an increased rating for L2 and L3 compression fracture with degenerative arthritis and degenerative disc disease of the lumbar spine, from February 24, 2019 to June 21, 2019, is denied. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Jack, Law Clerk 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.