Citation Nr: 20031692 Decision Date: 05/05/20 Archive Date: 05/05/20 DOCKET NO. 15-05 501 DATE: May 5, 2020 ORDER Entitlement to an initial rating in excess of 10 percent for lumbar spine disability is denied. FINDING OF FACT The preponderance of the evidence of record shows that the Veteran’s lumbar spine disability has not manifested with range of motion (ROM) on forward flexion limited to 60 degrees or less; combined ROM (CROM) of 120 degrees or less; or, guarding or muscle spasm. CONCLUSION OF LAW The criteria for entitlement to an initial rating in excess of 10 percent for lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, General Formula, Diagnostic Code (DC) 5236. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran perfected an appeal from an August 2013 rating decision that assigned an initial noncompensable rating for his disability. The Board notes that the initial rating was primarily premised on the Veteran’s failure to report for an examination due to his relocating to another state. See 08/08/2013 Rating Decision – Narrative; 04/02/2014 NOD. The Board remanded the case in 2018 for additional development. See 05/24/2018 BVA Decision. As discussed further below, the Board finds that under the circumstances of this case there was substantial compliance with the remand directives. Entitlement to an initial rating higher than 10 percent for lumbar spine disability Applicable Law and Regulation Disability ratings are intended to compensate for impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, see 38 C.F.R. §§ 4.1, 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran’s favor. 38 C.F.R. § 4.3. Evaluations are based on functional impairments which impact a veteran’s ability to pursue gainful employment. 38 C.F.R. § 4.10. If there is a question as to which disability rating to apply to the Veteran’s disability, the higher rating 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. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; see Peyton v. Derwinski, 1 Vet. App. 282 (1991). In general, the degree of impairment resulting from a disability is a factual determination and generally the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Nonetheless, separate, or staged, ratings can be assigned for separate periods during the initial rating period on appeal based on the facts found. See O’Connell v. Nicholson, 21 Vet. App. 89, 91-92 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202, 205-08 (1995); 38 C.F.R. §§ 4.40, 4.45. In DeLuca, the Court stated that increased symptomatology due to weakness, fatigue, etc., where possible, should be, where possible stated by examiners in terms of additional loss of range of motion. DeLuca, 8 Vet. App. at 205. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Rating Criteria Initially, the Agency of Original Jurisdiction (AOJ) evaluated the Veteran’s low back disability as sacroiliac injury and weakness under DC 5236; but, following the 2014 examination, changed the Veteran’s DC to 5242 for degenerative arthritis. See 09/19/2019 Rating Decision – Codesheet. The difference is de minimus, however, as the rating is still based on LOM. Cf. 38 C.F.R. § 4.71a, DC 5003. For the thoracolumbar spine, normal range of motion (ROM) on forward flexion is 0 to 90 degrees; backward extension, 0 to 30 degrees; and, lateral flexion and lateral rotation, 0 to 30 degrees. See 38 C.F.R. § 4.71a, Plate V. Spine disabilities are rated under the General Formula. Regarding the lumbar spine, 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, a 40 percent rating applies if forward flexion of the thoracolumbar spine is 0 to 30 degrees or less. A 20 percent rating applies if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, if the CROM of the thoracolumbar spine is not greater than 120 degrees; or if the disability is manifested by 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 10 percent rating applies if forward flexion of the thoracolumbar spine is greater than 60 but not greater than 80 degrees, or CROM is greater than 120 degrees but not greater than 235 degrees. 38 C.F.R. § 4.71a, General Formula. Associated objective neurological abnormalities are rated separately under the appropriate diagnostic code. Id., at Note (1). Discussion The November 2014 examination report (11/25/2014 C&P Exam, 2nd Entry) reflects that the examiner conducted a review of the claims file and took and recorded the Veteran’s reported lay history of his symptoms. The Veteran reported that his pain was at the mid-lumbar region, and he assessed it as of 4/10 severity when at rest, with occasional flares to 8/10. He did not report the frequency of the flares or the impact of them on his ability to function, nor did he report any functional loss due to repeated use over time. Id., P. 2. The Veteran reported further that his treatment had included Flexeril, Ibuprofen, stretching exercises, and a TENS unit. He had also undergone a regimen of physical therapy. He reported further that he was a full-time student at the time of the examination. Physical examination revealed normal ROM in all planes without any objective evidence of pain. The examiner noted that there was no localized tenderness, pain on palpation, or guarding or muscle spasm. X-rays were read as showing a normal lumbosacral spine without evidence of arthritis. Id., P. 7. The objective findings on clinical examination show that the Veteran’s lumbar spine manifested at the 0 percent or noncompensable rate. A compensable rating was not met or approximated, as the Veteran’s ROM was normal and pain free in all planes. See 38 C.F.R. § 4.59. Further, the examiner noted that there was no additional loss of ROM on repetitive-use testing; and, the examiner opined that there was no additional loss of ROM due to pain during flare-ups or functional loss due to repeat use over time. Id., P. 8. See 38 C.F.R. §§ 4.40, 4.45. The Veteran’s neurological examination was normal in all areas. Hence, there is no factual basis for a separate rating for associated neurological symptoms. The Board remanded the case in 2018 because the 2014 examination did not comply with the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016). The Court of Appeals for Veterans Claims (Court) held in Correia that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight- and non-weight-bearing and, if possible, with ROM measurements of the opposite undamaged joint. The AOJ obtained all relevant treatment records extant and arranged a current examination as directed. The March 2019 examination report (03/27/2019 C&P Exam, 1st Entry) reflects that the examiner conducted a review of the claims file and took and recorded the Veteran’s lay reported history. The examiner entered diagnoses of lumbosacral strain and degenerative arthritis of the spine. Id., P. 4. The Veteran did not report any flare-ups or functional loss due to repeat use over time. Physical examination revealed motion on forward flexion to 65 degrees; backward extension to 25 degrees; and lateral flexion and lateral rotation of 30 degrees bilaterally, for combined ROM of 210 degrees. The examiner noted evidence of pain on forward flexion and backward extension, passive and active, and that it caused functional loss. There was evidence of pain on weight bearing, but on non-weight bearing. There also was evidence of localized mild tenderness or pain on palpation of the soft tissue at the low back. The examiner assessed the Veteran’s functional loss as less movement than normal and pain avoidance. The objective ROM findings on clinical examination revealed that the Veteran’s disability continued to manifest at the noncompensable rate. Nonetheless, the AOJ correctly assigned a 10 percent rating due to painful motion. See 38 C.F.R. § 4.59. The Court interpreted § 4.59 as requiring the minimum compensable rating for painful motion. As set forth earlier, 10 percent is the minimum compensable rating for lumbar spine LOM. The Board finds that a higher, 20 percent rating was not met or approximated, as the examiner noted that repetitive-use testing did not reveal any additional loss of ROM. The examiner noted further that there was no evidence of guarding or muscle spasm. The Board notes that the 2014 examination did not contain findings of range of motion both in active and passive position and did not quantify the degree of additional limitation of function, if any, exhibited during flare-ups. The examiner who conducted the 2019 examination did not make any retroactive assessment based on the findings at the 2014 examination. Nonetheless, the Board finds that the 2018 remand directives were substantially complied with. Indeed, the remand instructions never expressly required that the examiner provide a retrospective opinion as to the functional effects of the flare-ups reported in 2014; rather, the aim of the remand was to obtain evidence to document the present severity of the disability. Moreover, as the Veteran’s ROM findings in 2014 were normal in all planes and with no evidence of pain, it is unclear how an examiner could use that information to extrapolate the degree of additional limitation on flare-up; even if an estimate had been provided, it is unclear how much probative value it could be afforded. Further, and most importantly, the Veteran is not prejudiced here because the AOJ assigned the compensable rating of 10 percent effective back to the date of the Veteran’s claim in July 2012. See 38 C.F.R. § 3.400. Hence, the Board finds that any additional development as concerns the earlier part of the rating period would not serve any useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540 (1991) (remand is unnecessary where it would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant). The Board also notes that the 2019 examination report reflects that the examiner noted that he could not assess the degree of any additional loss of ROM due to the flare-ups or functional loss due to repeat use over time other than via speculation. Generally, this would necessitate a remand for failure to comply with the Court’s requirements as set forth in Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this case, however, as set forth earlier, the Veteran in 2019 did not report any flare-ups or functional loss due to repeat use over time. Hence, the Board finds the examination adequate for rating purposes, that compliance with the 2018 remand directives were adequate. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance, rather than absolute compliance, with remand orders). The 2019 examination report also reflects a normal neurological examination. See 03/27/2019 C&P Exam, 1st Entry, P. 7-9. Hence, the Board finds no factual basis for a separate rating for associated neurological symptoms. Finally, review of the clinical record during the rating period on appeal reflects complaints of back pain, and findings of tenderness on palpation of the lumbar spine, along with mild muscle tightness. While such records occasionally reference limited motion due to pain, specific range of motion findings are not provided. Overall, these clinical records do not show a disability picture more severe than that reflected on VA examination. (Continued on the next page)   As noted, the AOJ assigned the 10 percent rating as of the date of the claim in 2012, see 07/05/2012 VA 21-526b, and that the preponderance of the evidence shows that the Veteran’s lumbar spine disability has not manifested at a more severe rate at any time during the rating period on appeal. Thus, the Board finds no factual basis for a staged rating for any part of the period. The 2019 examination report reflects that the examiner assessed the work impairment of the Veteran’s disability as an inability to bend, lift, push, pull, walk, run, squat or crawl in a prolonged or repetitive manner. Exam Report, P. 11. The Board finds no evidence of record for the rating period on appeal that indicates that the Veteran’s lumbar spine disability precludes him from obtaining and maintaining substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The Board finds that the assigned 10 percent rating appropriately compensates the Veteran for his earning impairment to the extent practical for his lumbar spine disability. 38 C.F.R. §§ 4.1, 4.71a, General Formula, DC 5242. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. T. Snyder 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.