Citation Nr: 20072879 Decision Date: 11/12/20 Archive Date: 11/12/20 DOCKET NO. 17-46 092 DATE: November 12, 2020 ORDER Entitlement to a disability rating in excess of 20 percent for lumbosacral strain with degenerative arthritis is denied. FINDING OF FACT Throughout the rating period on appeal, the Veteran’s lumbosacral strain with degenerative arthritis of the spine has not been manifested by forward flexion of 15 degrees or less, favorable ankylosis of the entire cervical spine, or intervertebral disc syndrome. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 20 percent for lumbosacral strain with degenerative arthritis of the have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.59, 4.71a, Diagnostic Code 5424-5243 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from November 1952 to December 1984. This appeal comes to the Board of Veterans’ Appeals (Board) from a July 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled for a requested hearing before a member of the Board in October 2019 but did not appear with no good cause shown. Therefore, the request for a hearing is considered withdrawn. Increased Ratings 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 percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155 ; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 50910 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4. 40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). However, a veteran may be entitled to a higher disability evaluation than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes “additional functional loss i.e., ‘the inability... to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance’ including as due to pain and/or other factors” or “reduction of a joint’s normal excursion of movement in different planes, including changes in the joint’s range of movement, strength, fatigability, or coordination.” Lyles v. Shulkin, 29 Vet. App. 107, 117-18 (2017) (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45 ); DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995). Under the General Rating Formula for the Spine, a 20 percent evaluation requires either forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; the combined range of motion of the thoracolumbar spine not greater than 120 degrees; 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 an abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent evaluation requires forward flexion of the cervical spine of 15 degrees or less or favorable ankylosis of the entire cervical spine. A 40 percent evaluation will be assigned for either unfavorable ankylosis of the entire cervical spine; forward flexion of the thoracolumbar spine 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 will be assigned for unfavorable ankylosis of the entire spine. Alternatively, a back disorder can be rated as Intervertebral Disc Syndrome (IVDS) based on incapacitating episodes. Under those criteria, found at Diagnostic Code 5243. A 40 percent rating is warranted for incapacitating episodes having a total duration of less than six weeks, but more than four weeks and a 60 percent rating is warranted if incapacitating episodes have a total duration of at least six weeks during the past 12 months. There is no corresponding note allowing for the separate evaluation of any associated neurologic abnormalities. 38 C.F.R. § 4.71a. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). Entitlement to a rating in excess of 20 percent for lumbosacral strain The Veteran contends that his current lumbosacral strain (back condition)’s symptomatology is more severe than is contemplated by the current rating. The Veteran submitted a claim for a rating in excess of 20 percent for his back condition in May 2017. The Board has considered all evidence up to one year prior. In June 2017 the Veteran was afforded a VA examination. Upon testing, range of motion was forward flexion to 50 degrees (normal is to 90 degrees), extension to 50 degrees (normal is to 30 degrees), lateral flexion to 20 degrees bilaterally (normal is to 30 degrees), and rotation to 15 degrees bilaterally (normal is to 30 degrees), and without additional range of motion limitation from repetitive use testing. Functional loss was stated to be caused by pain, fatigue, weakness, lack of endurance and incoordination. Functional loss was reported as “difficulty in any activity that involves lumbar musculature such as walking, standing for long periods, lifting.” The Veteran stated that he suffered from flare-ups, which in his own words were described as: “at times pain gets worse and he must stop his activity such as walking.” Flare ups caused estimated further loss of motion with bilateral lateral rotation to 10 degrees. There was no evidence of guarding, muscle spasms, ankylosis or intervertebral disc syndrome (IVDS). The functional impact of the Veteran’s back condition was stated to be: “Pain and impaired movement will impact on any activity that involves the lumbar area. such examples are walking, lifting, driving, standing for long periods etc.” See June 2017 C&P Exam. The Veteran submitted a timely notice of disagreement in July 2017 and a statement of the case (SOC) was provided in August 2017. The Veteran submitted a timely VA Form 9, perfecting his appeal in August 2017. The Veteran provided statements in August 2017 and in October 2017 when he wrote: “I can only bend forward about 15 degrees. My back just won’t bend any more than that. When I do bend forward and stay in that position, then I have a very difficult time standing back up. Then my back hurts for about an hour before I can bend over again. This makes it very hard to get much physical work accomplished if it requires bending. Also, if I kneel down on one knee, when I try to stand up my back feels like a knife is cutting me causing me to fall forward. The last time this happened about 5 weeks ago, I fell and skinned my right leg pretty bad and also bruised my right shoulder, my leg still hasn’t healed from the fall. I also fell down my stairs at home twice when my back got a catch in it and my wife had to help me up. I can’t stand up straight and when I walk every time my foot hits the ground, I feel it in my lower back. I also have problems getting in and out of bed and have fallen several times because my back catches. Dr. W. who works in pain management…showed me some exercises to help reduce the pain. They do help for awhile but only temporarily. He also advised me against back surgery.” See October 2017 VA 21-4138. In November 2017, the Veteran was seen in a VA physical therapy clinic and was fitting for a back brace which the Veteran could don independently. Primary care records note the use of over the counter oral and patch pain medication but no reports of severe limitation of motion or falls. The Board finds that the Veteran is competent to report back pain on motion, limitations in walking and straightening, and a presumably recent fall, the Board places less probative weight that these reports represent a worsening of the disability since the examination in June 2017. His estimate of a limitation of lumbar flexion at 15 degrees is not as probative of that measured more rigorously in June in a clinical setting when there was an opportunity to expand on reports of immobility and instability. Further, the outpatient primary care records in November 2017 do not reflect a worsening such that the June 2017 assessment was no longer valid. While the Board accepts the Veteran’s lay statements concerning the functional effects of his back condition, they are not consistent with his reports to the examiner only two months earlier. The Board finds that they do not indicate a worsening of symptomatology such that a new VA examination is warranted. Finally, a hearing was subsequently scheduled for October 2019, but the Veteran did not appear or submit additional evidence. After reviewing the Veteran’s medical records and lay statements, the Board must conclude that a rating in excess of 20 percent for his back condition is not warranted. In reaching this conclusion, the Board notes that the weight of competent and probative evidence of record does not show forward flexion of the cervical spine of 15 degrees or less or favorable ankylosis of the entire cervical spine. Neither does the record show a diagnosis of IVDS. The Board therefore finds that the criteria for a disability rating in excess of 20 percent have not been met at any time during the relevant period. The preponderance of the evidence is against the assignment of a higher disability rating, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Abels, 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.