Citation Nr: 20026047 Decision Date: 04/15/20 Archive Date: 04/15/20 DOCKET NO. 15-07 950 DATE: April 15, 2020 ORDER An initial rating in excess of 10 percent prior to May 15, 2018 for a service-connected lumbosacral strain with degenerative arthritis and degenerative disc disease (hereinafter lumbar spine condition) is denied. REMANDED Entitlement to a rating in excess of 20 percent from May 15, 2018 for a lumbar spine condition is remanded. FINDING OF FACT Prior to May 15, 2018, the Veteran’s lumbar condition manifested in forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees and a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent prior to May 15, 2018 for a lumbar spine condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.130, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1969 to December 1969, with additional service in the Army National Guard. In April 2018, a videoconference hearing was held before the undersigned Veterans Law Judge (VLJ). A transcript is of record. This matter was previously remanded by the Board in August 2018. 1. Entitlement to an initial rating in excess of 10 percent prior to May 15, 2018 for lumbar spine condition. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. 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 Incapacitating Episodes). Ratings under the General Rating Formula for Diseases 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 lumbar spine condition is rated under 38 C.F.R. § 4.124a, Diagnostic Code 5237. 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 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. See 38 C.F.R. § 4.71a. From May 20, 2010 to May 14, 2018 The Veteran contends that an initial rating in excess of 10 percent is warranted prior to May 15, 2018. See March 2020 Appellant’s Brief. VA treatment records show the Veteran has a history of chronic low back pain throughout the period at issue. For example, in July 2011, the Veteran reported intermittent low back pain. In February 2012, he reported occasional low back pain. On February 2014 VA examination, the VA examiner noted that the Veteran’s diagnosis was a lumbosacral strain. The Veteran reported that he had occasional back pain with prolonged walking, standing, and bending. He also reported that flare-ups did not impact the function of the thoracolumbar spine. Range of motion testing showed flexion at 70 degrees with pain at 60 degrees, extension at 30 degrees with pain at 20, right lateral flexion at 30 degrees with pain at 25 degrees, left lateral flexion at 30 degrees with pain at 25 degrees, right lateral rotation at 30 degrees with pain at 25 degrees, and left lateral rotation at 30 degrees with pain at 25 degrees. The Veteran was able to complete repetitive use testing with at least three repetitions, with no additional functional loss or range of motion, but pain on movement was noted. The VA examiner noted that there was mild tenderness on the midline at L5-S1 with no swelling, no effusion, and no spasms. The Veteran had normal muscle strength and normal reflexes. There was no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. The Veteran reported using a back brace regularly and a cane on occasion due to back pain. The VA examiner noted that the Veteran’s functional impairment from his lumbar spine condition was limited, as he was able to carry out all activities of daily life with some difficulties. VA treatment records indicate that the Veteran reported low back pain in June 2014. In July 2014 and August 2014, the Veteran reported low back pain and requested a back brace. The Veteran reported low back pain in December 2014, at which time severe degenerative disc disease was diagnosed by x-ray. From February 2015 through April 2015, the Veteran’s VA treatment records indicate he underwent physical therapy for his low back pain. He reported localized pain to the center of his back and across his lower back; he denied tingling or numbness in his lower extremities. He further reported low back pain with cold weather, walking, prolonged standing and sitting, and bending forward. The VA clinician noted that the Veteran’s range of motion was decreased but did not measure the limitation in degrees. By April 2015, the Veteran reported that his back began to improve after doing physical therapy exercises. In November 2015, the Veteran reported that his back brace helped him to ambulate. In February 2016, April 2016, and November 2016, he reported low back pain. In June 2017, he reported that he had good days and bad days from his low back pain, but that the low back pain was stable and intermittent. VA treatment records indicate that the Veteran sought treatment for a low back pain flare-up in October 2017 that lasted for approximately 1 week. The VA clinician noted that there was no tenderness to palpitation, strength was normal, and there was pain with all movements. A straight leg raise was attempted, but there was pain with less than 30 degrees of elevation. A new back brace was ordered, and the Veteran was issued a TENS Unit. At the April 2018 Board hearing, the Veteran reported that his low back pain impacted his ability to carry out actions that required bending over, such as tying his shoes. He reported that his low back pain was constant but increased and caused flare-ups when the weather was cold or rainy. He further reported that his low back pain caused difficulty sleeping, required daily use of a back brace, and necessitated prescription pain medication. The Veteran further asserted that the February 2014 VA examination was inadequate because it was not thorough enough. He asserted that he requested x-rays to be taken along with the February 2014 VA examination, but that the VA examiner stated that none were needed. The Veteran contended that the subsequent x-rays taken in December 2014 showed severe degenerative disc disease demonstrating that a rating in excess of 10 percent was warranted prior to May 15, 2018. The Board acknowledges the Veteran’s contentions that the February 2014 VA examination did not adequately assess his condition. However, in determining the current nature and severity of the Veteran’s lumbar condition, the additional diagnosis of degenerative disc disease does not change the ranges of motion that were measured during the examination. The measurements taken on examination demonstrated the current nature and severity of the Veteran’s lumbar condition. As such, the Board finds that the February 2014 VA examination to be adequate and highly probative. The Board finds that for the period prior to May 15, 2018, the preponderance of the evidence of record did not demonstrate the criteria for the next higher disability rating. During the relevant period on appeal, the lay and medical evidence of record indicated that the Veteran received a diagnosis of degenerative disc disease manifested by low back pain. The Veteran’s range of motion testing on February 2014 VA examination demonstrated forward flexion of the thoracolumbar spine of 70 degrees and combined range of motion of the thoracolumbar spine of 220 degrees. The medical and lay evidence from the period on appeal does not demonstrate 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. In reaching the foregoing conclusions, the Board considered functional loss due to pain and weakness that causes additional disability beyond that which is reflected on range of motion measurements. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board also considered the effects of weakened movement, excess fatigability, and incoordination. 38 C.F.R. § 4.45. Although the Board accepts the Veteran’s assertions that his lumbar spine condition causes him to experience pain and decreased ability to walk, sit, stand and bend, this was taken into account in the above discussion of range of motion. The rating schedule does not require a separate rating for pain itself. Spurgeon v. Brown, 10 Vet. App. 194 (1997). Furthermore, even when the Veteran’s complaints of pain are considered, the Board concludes that the overall manifestations of his lumbar spine condition generally do not demonstrate a degree of functional loss so as to warrant higher ratings for the period on appeal. Additionally, the Board observes the Veteran has maintained normal muscle strength and reflexes associated with his lumbar spine throughout the period at issue. Moreover, even if flexion was limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011) (emphasis added). Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. In this case, it does not. Finally, the Board has also considered whether a higher disability rating may be assigned by evaluating the Veteran’s disability under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. However, the record does not show, nor has it been asserted, that the Veteran has experienced a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Accordingly, a higher disability rating under this Formula is not warranted. As such, there is no basis for a rating in excess of 10 percent for the Veteran’s lumbar spine condition from May 20, 2010 to May 14, 2018 and the Veteran’s claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 2. Entitlement to a rating in excess of 20 percent from May 15, 2018 for a lumbar spine condition Unfortunately, another remand is required before this issue can be properly adjudicated. The May 2018 VA examiner stated that an analysis regarding flare-ups of back pain was not applicable in the Veteran’s case. The VA examiner further indicated that an opinion regarding limitations on the Veteran’s functional ability due to pain, weakness, fatigability or lack of coordination over time could not be rendered without speculation because the Veteran was not being examined [over time]. The May 2018 VA examination was found to be inadequate by the Board in the August 2018 remand, as the lay and medical evidence of record clearly indicated the presence of flare-ups, specifically to include a flare-up of back pain in October 2017 and several reports of increased back pain with cold weather and rain (see above decision). On March 2019 VA examination, the VA examiner stated that an analysis regarding flare-ups of back pain was not applicable in the Veteran’s case because the Veteran does not experience flare-ups. The Board finds that remand to obtain an addendum opinion is warranted to reconcile the Veteran’s lay and medical evidence demonstrating flare-ups of low back pain with the March 2019 VA examiner’s determination that the Veteran does not experience flare-ups of low back pain. The matter is REMANDED for the following action: Obtain an addendum opinion from the March 2019 VA examiner to reconcile the Veteran’s lay and medical evidence demonstrating flare-ups of low back pain with the March 2019 determination that the Veteran does not experience flare-ups of low back pain. If the March 2019 VA examiner is not available, obtain the opinion from another appropriate clinician. If it is determined the requested opinion may not be provided without an examination of the Veteran, such should be scheduled. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Griffin, 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.