Citation Nr: 20056331 Decision Date: 08/26/20 Archive Date: 08/26/20 DOCKET NO. 14-02 876 DATE: August 26, 2020 ORDER A rating in excess of 20 percent for lumbar strain is denied. REFERRED The issue of service connection for degenerative joint disease (DJD) of the cervical spine, to include as secondary to a thoracolumbar disability, was raised by the Veteran and referred by the Board in the March 2019 remand. The claim has not yet been adjudicated. A development letter was sent to the Veteran in October 2019 but did not identify the claim being developed with specificity. Therefore, the claim is again referred to the agency of original jurisdiction (AOJ) for action. FINDINGS OF FACT 1. The Veteran had active service from July 2001 to November 2004. 2. A lumbar spine disability has been manifested by forward flexion to no less than 50 degrees with pain, stiffness, spasm, and tenderness to palpation but without ankylosis or intervertebral disc syndrome (IVDS) with incapacitating episodes and no objective signs of radiculopathy. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for a lumbar strain disability have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appeal was previously before the Board in September 2017 and March 2019, at which times it was remanded for further development. It has again returned to the Board for appellate review. Turning to the applicable laws and regulations, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Lumbosacral spine disabilities are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, DCs 5237-5243. IVDS is rated under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Veteran has been rated under DC 5237 and the Board will consider all relevant diagnostic codes. A rating in excess of 20 percent will be warranted when the objective medical evidence shows the following: • forward flexion of the thoracolumbar spine to 30 degrees or less (40 percent); • favorable ankylosis of the entire thoracolumbar spine (40 percent); or • incapacitating episodes of IVDS having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40 percent). Turning to the evidence, at a February 2011 VA examination, the Veteran reported progressively worse pain of the lumbar and thoracic spines with flare-ups, severe in nature, occurring weekly and lasting one to two days. He indicated that he needed to lie down during flare-ups. Other subjective symptoms included stiffness, fatigue, weakness, spasm, decreased motion, and pain radiating down into both legs. Objective findings included spasm, tenderness, and pain. Range of motion was forward flexion to 50 degrees, extension to 10 degrees, right and left lateral flexion to 20 degrees, and right and left rotation to 30 degrees. There was objective evidence of pain with motion but no additional functional loss after repetition. Testing of reflexes, sensation, and motor function revealed no abnormalities. X-rays showed no spondylosis or spondylolisthesis. Vertebral height and alignment and disc spaces were maintained. The examiner noted no ankylosis A December 2013 VA examination documented reports of back spasms daily; the Veteran had fallen a few days earlier and was in a wheelchair at the examination. He denied flare-ups. Range of motion was to 55 degrees flexion with pain at 10 degrees. Extension was to 10 degrees with pain at 10 degrees. Right lateral flexion was to 25 degrees and left lateral flexion was to 20 degrees with pain at 10 degrees for each movement. Right and left rotation were each to 30 degrees or greater with pain at 10 degrees for each. The examiner documented no additional loss of function with repetitive motion testing. Reflexes were hyperactive at the right knee but otherwise normal. Sensory and motor examinations were also normal. The straight leg test was positive bilaterally, but the examiner found no signs of radiculopathy on either side. There was no ankylosis or IVDS and no history of incapacitating episodes with prescribed bedrest. At a November 2017 VA examination, the Veteran reported spasms and pain with certain range of motion. He denied experiencing flare-ups. The clinical examination revealed range of motion to 50 degrees forward flexion and to 30 degrees each for extension, right and left lateral flexion, and right and left rotation. Mild pain was noted with forward flexion, but the examiner indicated the pain did not result in functional loss. The evidence did not show pain with weight-bearing. There was objective evidence of pain and of tenderness to palpation. Repetitive-use testing did not result in any additional loss of range of motion. The examiner noted no additional factors of disability. Strength, reflex, sensorimotor, and straight-leg raise testing was normal, and the examiner stated that there were no signs of radiculopathy. The examiner found no ankylosis or IVDS, and the was no history of incapacitating episodes with prescribed bedrest. The examiner reported that passive range of motion could not be tested in a safe and reasonable manner and that non-weight bearing assessment was not applicable, noting that there was no objective evidence of pain when the spine was in a non-weight bearing position at rest. The November 2019 VA examination noted subjective complaints of progressively worse symptoms in the lower and mid-back resulting in locking of the back if the Veteran moved too quickly and numbness in both legs (mainly the right leg) after sitting for too long. He rated the pain at 9/10 but denied flare-ups. Range of motion testing found forward flexion to 70 degrees and extension, bilateral flexion, and bilateral rotation each to 30 degrees. Repetitive range of motion testing did not result in any additional loss of function. Pain was observed with each movement and with weight-bearing, but the examiner indicated that pain did not result in functional loss. There were no additional factors of disability, no ankylosis, and no IVDS with incapacitating episodes or bedrest. Strength, reflex, sensorimotor, and straight-leg testing were all negative. There were no signs of radiculopathy on either side. Passive range of motion was not tested as the examiner found it could not be assessed in a safe and reasonable manner. Additionally, the examiner reported that non-weight bearing assessment was not applicable but observed that there was no objective evidence of pain when the spine was in a non-weight bearing position at rest. A review of treatment notes does not reflect any symptoms or functional loss that is more severe than reported at the examinations. Physical therapy providers reported some decreased strength in the right and left lower extremities at 3/5 in October 2013, but no diagnosis was rendered regarding a neurological disability of the lower extremities in connection with the spine. Notably, physical therapy was initiated for the purpose of treating the right upper extremity for neurological symptoms related to a stroke in 2007. Thus, considering the above evidence, a rating in excess of 20 percent for the Veteran’s lumbar spine disability is not warranted at any time during the appeal period. The 20 percent rating assigned contemplates restriction of forward flexion to no less than 50 degrees with spasm, stiffness, pain, tenderness to palpation. A rating in excess of 20 percent required forward flexion limited to no more than 30 degrees or incapacitating episodes. These symptoms and manifestations were not present during the period on appeal either actually or functionally. Consequently, the medical evidence does not support a rating in excess of 20 percent. Further, the Board contemplated whether a separate rating is warranted for neurological symptoms associated with the thoracolumbar spine disability ina accordance with 38 C.F.R. § 4.71a, General Rating Formula, Note 1. However, while the Veteran has reported symptoms such as numbness and experienced some loss of strength during the appeal period, no objective findings of radiculopathy were found on clinical examination, and no diagnosis of radiculopathy was rendered. Therefore, the medical evidence does not support a separate rating for radiculopathy of either the right or left lower extremity. While the claim has been remanded in September 2017 and March 2019, in the July 2020 brief, the Veteran contends that yet another examination is warranted; however, the Board finds that the November 2019 examination substantially complied with the remand directive. Specifically, the examiner conducted an in-person examination, reviewed the claims folder, conducted a physical examination, specifically diagnosed a spine disorder and identified it as lumbosacral strain, addressed the medical history as reported by the Veteran, identified current symptoms and treatment, noted that the Veteran did not report any functional impairment, and considered limitation of motion and functional loss, including a statement about the Correia factors. That the examiner determined that passive range of motion was not feasible is a medical judgment that is not subject to scrutiny by the Board. The examiner addressed passive (finding it not feasible from a medical perspective) and active range of motion (as described above) and a remand for another examination on this basis is not warranted. Further, the examiner conducted a non-weight bearing assessment and, although found that it was “not applicable,” the examiner, in fact, addressed non-weight bearing and found that there was no objective evidence of pain in a non-weight bearing position. To that extent, the examiner applied the Correia factors to non-weight bearing and found that there was no pain at rest. Considering the totality of the evidence, the examination reports and clinical evidence are sufficient to evaluate the medical condition of the Veteran’s spine disorder as it relates to the diagnostic criteria and another remand is not warranted. The Board has considered the Veteran’s lay statements that his disability is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his thoracolumbar spine according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s thoracolumbar spine disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which the disability is evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable, and the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. M. Schaefer, 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.