Citation Nr: 20032997 Decision Date: 05/12/20 Archive Date: 05/12/20 DOCKET NO. 11-27 987 DATE: May 12, 2020 ORDER Entitlement to an initial disability rating in excess of 10 percent for a lumbar spine disability is denied. FINDING OF FACT Throughout the appeal period, the Veteran’s lumbar spine disability manifested by abnormal range of motion with pain but did not result in muscle spasms or guarding severe enough to cause an abnormal gait, and ankylosis of the spine was not present. CONCLUSION OF LAW The criteria for entitlement to an initial disability rating in excess of 10 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army with multiple periods of active duty service, to include from April 2003 to September 2003, from December 2003 to March 2005, from February 2008 to April 2009, and from January 2013 to January 2014. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2009 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). For reasons unclear to the Board, the RO did not certify the appeal to the Board until October 2017. In April 2018, the Board remanded the appeal for further development by the Agency of Original Jurisdiction (AOJ). Entitlement to an initial disability rating in excess of 10 percent for a lumbar spine disability is denied. By way of history, the Veteran was granted service connection for his lumbar spine disability in November 2009. The Veteran filed a notice of disagreement in May 2010 contesting the initial disability rating assigned, and this appeal to the Board followed. The Veteran contends that he is entitled to a rating in excess of 10 percent for his service-connected lumbar spine disability. Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's lumbar spine disability is currently rated under 38 C.F.R. § 4.71a, DC 5243, for intervertebral disc syndrome (IVDS). DC 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula for the Spine) or under the Formula for Rating IVDS Based on Incapacitating Episodes (Formula for Rating IVDS), whichever method results in the higher rating when all disabilities are combined. The Formula for Rating IVDS provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a, Formula for Rating IVDS. Note 1 to DC 5243 provides that, for purposes of ratings under DC 5243, an incapacitating episode is 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. Id. at Note 1. Under DC 5243 and the General Rating Formula for the Spine, a 20 percent rating is warranted 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 rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, General Rating Formula for the Spine. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. Further, any associated objective neurological abnormalities, including, but not limited to radiculopathy or bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Furthermore, VA must also analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss. DeLuca v. Brown, 8 Vet. App. 202 (1995). However, pain that does not result in additional functional loss does not warrant a higher rating. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran had an initial VA examination in July 2009 in connection with his claim for service connection. The Veteran reported during this examination that he experienced recurrent back pain, precipitated usually by certain activities such as running or lifting. The Veteran denied experiencing any pain or radiation down to his lower extremities at this time, and denied weakness, paresthesias, or numbness. The Veteran reported he had not had any incapacitating episodes in the 12-month period prior to this VA examination. The Veteran endorsed experiencing flare-ups of his lumbar spine disability, indicating that they occurred mostly when he was “carrying heavy things” or running. The VA examiner noted that the Veteran had no muscle spasm, guarding, tenderness of the lumbar spine. Additionally, the VA examiner indicated that there was no spinal ankylosis. On range of motion testing, the VA examiner reported that the Veteran had lumbar forward flexion to 80 degrees; lumbar extension backward to 30 degrees; and lumbar right lateral and left lateral flexion to 30 degrees. The Veteran reported no pain on range of motion testing. The Veteran attended a second VA examination in June 2011. The Veteran reported at this examination that his low back pain had increased in intensity since his previous VA examination. The Veteran reported flare-ups of his lumbar spine disability that he categorized as severe in that they impacted his ability to walk. He indicated that he experienced these flare-ups almost daily, with precipitating factors that included prolonged periods of sitting or standing. The VA examiner observed that the Veteran had decreased motion of the lumbar spine, as well as stiffness, spasm, and pain. The VA examiner noted that the Veteran’s gait was normal, that he had no abnormal spine curvatures, and no ankylosis of the spine. On range of motion testing, the Veteran had lumbar forward flexion to 80 degrees; lumbar extension to 30 degrees; and lumbar right and left lateral flexion to 30 degrees. The Veteran was again afforded a VA examination in January 2014. The Veteran reported that during his most recent active duty tour, his lumbar spine disability was exacerbated. The Veteran denied flare ups. On range of motion testing, the Veteran had lumbar forward flexion to 60 degrees, with objective evidence of painful motion beginning at 55 degrees. The Veteran had lumbar extension to 20 degrees, and right and lateral flexion to 30 degrees. The VA examiner indicated that the Veteran did not have ankylosis of the lumbar spine. The VA examiner reported that the Veteran had muscle spasms of the lumbar spine though they did not result in abnormal gait, and he did not have any guarding. At this examination, the VA examiner indicated that the Veteran had radiculopathy which resulted in moderate numbness in the Veteran’s right lower extremity. Another VA examination took place in September 2014. The Veteran reported that he felt his lumbar spine disability had increased in severity and continued to endorse his right lower extremity pain and radiculopathy as a result. The Veteran reported flare-ups of his lumbar spine disability, indicating that they would occur after any lifting (of objects over 35 pounds) and excessive bending. On range of motion testing, the Veteran had lumbar forward flexion to 60 degrees, with objective evidence of painful motion beginning at 60 degrees. The Veteran had lumbar extension to 10 degrees, and right and lateral flexion to 20 degrees. The VA examiner remarked that the Veteran did have IVDS at the time of prior VA examinations and there were times when he had to “spend a lot of time in bed” but that he had not had any such incapacitating episodes during the past 12 months. The VA examiner observed that the Veteran had localized tenderness or pain to palpation, as well as significant paralumbar muscle spasms and tenderness. However, the VA examiner noted, the spasms did not result in abnormal gait or spinal contour. The VA examiner noted no ankylosis of the spine. The VA examiner indicated that the Veteran’s right lower extremity radiculopathy resulted in moderate intermittent pain that was usually dull. A VA examination in September 2016 indicated that the Veteran was continuing to experience flare-ups of his lumbar spine disability. On range of motion testing, the Veteran had lumbar forward flexion to 80 degrees, as well as right lateral flexion to 30 degrees and left lateral flexion to 20 degrees. The VA examiner indicated that pain with range of motion was noted on examination but did not result in or cause functional loss for the Veteran. The VA examiner reported there was no guarding or muscle spasm of the spine, as well as no ankylosis. The VA examiner indicated that the Veteran had radiculopathy of the right lower extremity, which resulted in mild paresthesias, but no other neurologic abnormalities. The most recent VA examination took place in October 2019. The Veteran again reported most severe pain in his lower back after prolonged periods of either sitting or standing. On range of motion testing, the Veteran had lumbar forward flexion to 70 degrees, with extension to 20 degrees, and right and left lateral flexion to 30 degrees. The VA examiner indicated that pain was noted on examination of the Veteran’s range of motion and causes functional loss, such as interference with the Veteran’s ability to sit or stand. The VA examiner reported no guarding or muscle spasms of the Veteran’s spine, as well as no ankylosis. The VA examiner indicated that the Veteran did not have radiculopathy or any other neurologic abnormalities. Other medical evidence throughout the record, including private treatment and VA treatment records, finds pain, notes of radiculopathy, especially in the right lower extremity, and evidence of functional impairment (i.e., inability to stand for prolonged periods of time, inability to sit for prolonged periods of time, and difficulty walking). In addition to the medical evidence, the Veteran also submitted various lay statements in support of his claim for an increased rating. Primarily, the Veteran’s lay statements assert that his lumbar spine disability interferes with his ability to successfully perform in his employment setting, but also that it interferes with his ability to perform chores and such activities around the house. The Veteran stated that as a result of his lumbar spine disability, he is even unable to play with his children. See e.g., July 2010 statements in support of claim (VA Form 21-4138). Further, in a June 2010 lay statement, a family member expressed that the Veteran’s pain sometimes “keeps him in bed.” The Veteran has also asserted that due to his lumbar spine disability, he was placed on bed rest for six weeks. See October 2011 VA Form 9. As a preliminary matter, in addition to the rating for the Veteran’s service-connected lumbar spine disability, he also currently has a separate rating for radiculopathy of the right lower extremity. Service connection was granted for this neurologic abnormality in August 2010, with an effective date of May 27, 2010. The evidence throughout the record, some mentioned above, confirms that the Veteran has experienced radiculopathy and its associated symptoms since 2010. Treatment records indicate that the Veteran experienced sharp pain from his buttock to foot, along with numbness which has grown progressively worse since onset. See June 2010 VA examination; see also August 2011 private treatment record. No other neurological findings are of record or have been associated with the Veteran’s lumbar spine disability. Thus, the associated neurologic abnormalities are compensated. The Veteran has not appealed the separate rating, and the evidence does not show that an earlier effective date is warranted, given the lack of evidence of radiculopathy prior to May 2010. Turning to the matter on appeal, the Board finds that the preponderance of the evidence is against an initial rating in excess of 10 percent for the Veteran’s lumbar spine disability. In order to warrant a higher rating for his lumbar spine disability under the General Rating Formula for the Spine, the probative evidence must show that the Veteran has been able to demonstrate upon range of motion testing a forward flexion greater than 30 degrees but less than 60 degrees, or ankylosis of the lumbar spine upon examination. The medical evidence of record summarized above does not reflect this level of severity of the Veteran’s lumbar spine disability. Throughout the appeal period, the Veteran’s lumbar forward flexion has ranged from 60 to 80 degrees, which corresponds to a 10 percent disability rating under DC 5243. See 38 C.F.R. § 4.71a, DC 5243. Furthermore, while the Veteran did report experiencing muscle spasms at various times throughout the appeal period, the VA examiner indicated on each VA examination of record that the Veteran’s muscle spasms did not result in abnormal gait or abnormal spinal contour. See e.g., June 2011 VA examination; January 2014 VA examination; September 2014 VA examination. To warrant a 20 percent disability rating under DC 5243, muscle spasms of the thoracolumbar spine must be severe enough to result in an abnormal gait or abnormal spinal contour. See 38 C.F.R. § 4.71a, DC 5243. Additionally, the VA examiner indicated that the Veteran did not exhibit ankylosis of the spine, whether favorable or unfavorable, at any time during the appeal period. The Veteran did report flare-ups of his lumbar spine disability throughout the appeal period, indicating that they were often precipitated by prolonged periods of sitting, standing, lifting, or bending. However, the VA examinations of record were not conducted during a flare-up and were neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during flare-ups. The VA examiner was unable to say without mere speculation whether pain, weakness, fatigability, nor incoordination significantly limited the Veteran's functional ability with flare-ups. Specifically, the Veteran provided no specific information regarding increased disability in terms of range of motion. Without additional and specific information, a reasonable and prudent clinician cannot, without resorting to speculation or conjecture, describe additional disability in terms of range of motion, particularly when the reported flare-ups occur outside the clinical environment. Thus, the overall evidence does not show that pain or other factors have resulted in additional functional limitation or limitation of motion. The disability rating assigned herein indicates a significant impact on his functional ability. Such disability evaluation assigned by VA recognizes his already painful motion. Alternatively, the Veteran is not entitled to a higher rating under the Formula for Rating IVDS, the medical evidence must have shown that the Veteran’s lumbar spine disability resulted in incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. This has not been shown by the medical evidence of record. While the Veteran contends that he was prescribed bed rest for six weeks as a result of his lumbar spine condition, the medical evidence of record reflects that at only one time throughout the appeal period, in May 2010, the Veteran was evaluated with low back pain and his private treatment provider indicated that the Veteran should treat the pain with “bed rest x 2 weeks, analgesics, and NSAIDs.” See June 14, 2010 private treatment record. The Board finds that this one instance may not be viewed in isolation of the entire medical record before it. Of specific note, the VA examinations of record reflect that the Veteran affirmatively denied experiencing incapacitating episodes as a result of IVDS within the 12 months prior to the examinations, with the most recent VA examinations denying that the Veteran has IVDS entirely. See e.g., October 2019 VA examination; November 2014 VA examination; January 2014 VA examination. Thus, the Board does not find a higher evaluation to be warranted based on incapacitating episodes. The Board acknowledges the Veteran’s lay reports of symptoms and his assertions that there is functional loss due to pain. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements do not approximate the criteria required for a higher disability rating. As such, the Veteran’s appeal must be denied. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Maietta, 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.