Citation Nr: 20043733 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 15-47 015 DATE: June 29, 2020 ORDER A disability rating in excess of 20 percent for a chronic lumbosacral strain is denied. FINDING OF FACT The Veteran’s chronic lumbosacral strain is not manifested by forward flexion of the thoracolumbar spine 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. CONCLUSION OF LAW The criteria for entitlement to a disability evaluation in excess of 20 percent for the Veteran’s service-connected chronic lumbosacral strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235 to 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1966 to March 1986. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was remanded in April 2019 for further development. Entitlement to a rating in excess of 20 percent for a chronic lumbosacral strain. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, however, an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The General Rating Formula for Diseases and Injuries holds that for diagnostic codes 5235 to 5243 (unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome based on incapacitating episode) a 100 percent rating is warranted when there is unfavorable ankylosis of the entire spine. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted when there is unfavorable ankylosis of the entire cervical spine; or forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 30 percent rating is warranted when there is forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 20 percent rating is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 degrees; or combined range of motion of the cervical spine not greater than 170 degrees; or muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The criteria also include the following provisions: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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 combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 5235 Vertebral fracture or dislocation 5236 Sacroiliac injury and weakness 5237 Lumbosacral or cervical strain 5238 Spinal stenosis 5239 Spondylolisthesis or segmental instability 5240 Ankylosing spondylitis 5241 Spinal fusion 5242 Degenerative arthritis of the spine (see also diagnostic code 5003) 5243 Intervertebral disc syndrome. It should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Additionally, a 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past 12 months. A 10 percent rating is warranted when there are incapacitating episodes having a total duration of at least one week, but less than two weeks during the past 12 months. An incapacitating episode is defined as 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. The Veteran underwent VA examinations in February 2012, September 2015, and December 2019. None of the examinations reflect findings consistent with a rating in excess of a 20 percent rating. At the February 2012 examination, the Veteran stated that he was treated in urgent care twice in the prior year (on 11/23/11 and 11/27/11). He reported that his back pain is intermittent, occurring with bending, lifting, and prolonged sitting. He reported that back pain does not affect eating, grooming, bathing, toileting, and dressing. He reported taking Lortab as need for the pain. He reported flare-ups caused by lifting heavy objects more than 30 pounds, bending, lifting, and prolonged activity. He reported pain that was 5/10 in severity. Upon examination, the Veteran achieved 60 degrees of forward flexion, with pain at 60 degrees; extension to 25 degrees, with pain at 25 degrees; right and left lateral flexion to 25 degrees bilaterally with no objective evidence of pain; and right and left rotation to 25 degrees bilaterally with no objective evidence of pain. The examiner stated that 25 degrees of extension, lateral flexion, and rotation is normal for someone the Veteran’s age. He stated that forward flexion was less than normal. Following three repetitions of motion, forward flexion was further limited to 55 degrees. Extension and right lateral flexion showed no additional limitation of motion. Left lateral flexion, as well as right and left rotation were limited to 20 degrees. The examiner noted that functional limitations consisted of less movement than normal, and pain on movement. There was no radiculopathy. The examiner found that the Veteran did not have intervertebral disc syndrome, and that the Veteran’s back disability did not impact his ability to work. At the September 2015 examination, the Veteran reported pain and stiffness mostly in the low, left back. He reported that pain is aggravated by standing and walking. It did not radiate. He described it as sharp, shooting, and 10/10 in intensity, and lasting an hour. He denied flareups of pain. He denied bowel and bladder dysfunction related to a low back condition. He has not had physical therapy or injections into the low back in the last 12 months. He has not had surgery on the low back. Over the last 12 months, the pain in the low back is worse and more frequent. He has not been placed on bedrest in the prior 12 months due to the low back condition. Upon examination, the Veteran achieved flexion to 90 degrees, extension to 30 degrees, right lateral flexion to 25 degrees, left lateral flexion to 30 degrees, right rotation to 25 degrees, and left rotation to 30 degrees. Range of motion itself did not result in functional loss. Pain (exhibited during flexion, extension, and right lateral flexion) caused functional loss. There was no evidence of pain with weight bearing. There was no additional loss of function following three repetitions of movement. The examiner was unable to state (without resorting to speculation) whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time. There was no radiculopathy, ankylosis, or other neurologic abnormalities. There was no intervertebral disc syndrome. The Veteran constantly used a cane, but the examiner noted that he used it due to having had a stroke. It was unrelated to his back disability. The examiner opined that the Veteran’s back disability would not impact his ability to work. The examiner noted that the Veteran retired from the post office in 2004 due to the number of years worked. She noted that the Veteran was able to attend to all activities of daily living, handle finances and drive; however, the Veteran stated that he did not do any activity. The examiner noted that the Veteran no longer had paralysis of the sciatic nerve. She stated that the Veteran’s back strain had resolved. She explained that a strain is a temporary, soft tissue condition. The lumbar spine diagnosis is now spondylosis, lumbar. There was no localized tenderness or pain at either this examination or at his February 2012 examination. Likewise, there was no guarding or muscle spasms during either examination. Finally, at his December 2019 examination, the Veteran stated that he did not “understand why he was being evaluated and he did not put a claim in for his back.” The examiner informed him that his examination was based on a Board remand for appeal from previous rating. The Veteran stated that he did not want to be examined for his back due to already being “100%.” The RO had granted a 100 percent rating for diabetic nephropathy in a December 2016 rating decision. The Veteran was accompanied by his spouse. The examiner noted that the Veteran had not worked since 2017, and that he was on hemodialysis for his service-connected end stage renal disease due to his service-connected diabetes mellitus. Additionally, the examiner noted that the Veteran had a cerebrovascular accident in 2014. He was noted to have functional impairment with range of motion with weakness noted in all extremities and joints. He now ambulated with use of a J-cane. The Veteran continued to take Tramadol 50 mg for his back pain, which was intermittent, and he wore a lumbar support when ambulating for back pain. He denied prescribed bed rest due to back pain, but he reported that on some days there was difficulty moving around due to back pain that was managed with Tramadol with “good report.” The Veteran reported flare ups of pain at least 3-5 times weekly lasting for several days. He reported functional impairment with prolonged standing, lifting heavy items or prolonged sitting or any impact activity. With regard to the examination, no range of motion testing occurred. The Veteran preferred not to have his back examined. The examiner noted that the Veteran had pain at rest as reported and while sitting in a flexed position. There was evidence of pain with weight bearing. There was no objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. The examiner opined that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time or with flare-ups. There was no radiculopathy, ankylosis, or other neurologic abnormalities. There was no intervertebral disc syndrome. The Veteran used a cane constantly due to stroke-induced left-sided weakness, and he regularly used a brace for back support while ambulating. The examiner opined that the Veteran’s lumbar spine prevented him from maintaining gainful employment which included prolonged sitting, standing, ambulating or weight bearing, lifting, squatting, or any impact activity. He was limited from sedentary or manual physical employment due to lumbar spine. She stated that after examination of the Veteran, listening to his complete history and current subjective complaints, combined with a review of the available records, “I have no basis to offer additional losses of function or motion when it comes to repetitive use or during a flare-up.” As noted above, in order to warrant a rating in excess of 20 percent, the Veteran’s disability would need to be manifested by forward flexion of the thoracolumbar spine 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. None of these criteria have been met at any of the Veteran’s three examinations. There is no medical evidence to show that there is any additional loss of motion of the lumbar spine due to pain or flare-ups of pain, supported by objective findings, or due to excess fatigability, weakness or incoordination, to a degree that supports a rating in excess of 20 percent. In a June 2020 Brief, the Veteran’s representative stated that “as the Veteran appears to be cognitively functional and able to communicate and so does his wife, who was at the last VA C&P examination we are taken somewhat aback by the examiner’s failure to communicate. There appears to be no barrier on the part of either the Veteran or his wife to describing the everyday problems caused by the back nor to describing the flare-ups.” The representative’s reference to “the examiner’s failure to communicate” is unclear. There is nothing in the December 2019 examination report to suggest that the Veteran, his wife, or the examiner failed to communicate. To the contrary, the report clearly states that the Veteran did not understand why his back needed to be examined. The examiner explained that the Board remanded the claim so that he could undergo an examination. The Veteran explained that he did not want to be further examined because he is already in receipt of a 100 percent rating (albeit for a different disability). The representative stated that “should the Board not grant [the claim for an increased rating] it should remand for an examination with an examiner who has the verbal skills needed to talk to the Veteran and his wife.” The Board finds no reason to remand for an additional examination in so far as there is no evidence that the previous examiner lacked the verbal skills to communicate with the Veteran, and in so far as the Veteran has expressly stated that he does not want to have his back examined. The duty to assist is a two-way-street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Pursuant to 38 C.F.R. § 3.655(b), when a claimant fails to report for an examination scheduled in conjunction with a claim for increase, the claim shall be denied. In this case, the Veteran appeared for the examination but expressly stated that he did not want to be examined. Given that the Veteran appeared and fully cooperated at two previous examinations, the Board has rated the Veteran on the evidence of record. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for a rating in excess of 20 percent for a chronic lumbosacral strain must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Prem, 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.