Citation Nr: 21000220 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 10-37 188 DATE: January 4, 2021 ORDER Entitlement to an evaluation in excess of 20 percent for chronic lumbosacral strain for the period from December 30, 2008 to July 6, 2017 is denied. FINDING OF FACT For the period from December 30, 2008 to July 6, 2017, the evidence of record does not show that the Veteran’s service-connected lumbar spine disability resulted in functional impairment equivalent to forward flexion of the thoracolumbar spine limited to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for chronic lumbosacral strain for the period from December 30, 2008 to July 6, 2017 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.71a, Diagnostic Codes 5237-5243 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1992 to December 1994. This case is before the Board of Veterans’ Appeals (Board) on appeal from a April 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office. In April 2012, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. In January 2015, the Board denied the Veteran’s entitlement to an evaluation in excess of 20 percent for the Veteran’s chronic lumbosacral strain for the period beginning April 19, 2013. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2016 order, the Court granted a Joint Motion for Partial Remand (JMPR), vacating the Board's January 2015 decision, and remanded the matter for readjudication. Following the March 2016 JMPR order, the Board remanded the matter for further development in September 2016 and April 2017. In January 2018, the Board granted the Veteran’s entitlement to an evaluation of 20 percent, but no higher, for chronic lumbosacral strain for the period from December 30, 2008 to July 6, 2017, and the Veteran appealed this decision to the Court. In a February 2019 order, the Court granted a JMPR vacating the Board’s January 2018 decision, and remanded the matter for readjudication. In particular, the Court provided that the Board failed to adequately address which symptomatology led it to conclude that a higher rating was not warranted despite its acknowledgement that the August 2013 examination report indicates that the Veteran was unable to perform repetitive use testing. Thus, the Court remanded the matter for the Board to explain its reliance on the previous examinations and to obtain a retrospective medical opinion if necessary. In July 2019, the Board remanded the matter for further development, including obtaining a retrospective medical opinion on the Veteran’s functional loss experienced during flare-ups for the period from December 30, 2008 to July 6, 2017. Now the matter is returned to the Board. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2019). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27 (2019). VA has a duty to acknowledge and to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where there is a question as to which of two ratings to apply, VA will assign the higher rating if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7 (2019). Otherwise, it will assign the lower rating. Id. Pursuant to Diagnostic Code 5237 lumbosacral strain is evaluated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever method results in the higher rating. 38 C.F.R. § 4.71a (2019). Under General Formula, in pertinent part, a 40 percent disability rating is assigned for 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 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a, General Formula (2019). Under IVDS formula, in pertinent part, a 40 percent evaluation is assigned for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent evaluation is assigned for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2019). For the purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id., at Note (1). The Board notes that a retrospective medical opinion regarding the Veteran’s functional loss due to lumbar spine disability during the period at issue was obtained in December 2019. The December 2019 examiner indicated that he has reviewed the Veteran’s records including VA examination reports from April 2009, April 2013, August 2013, and July 2017, a March 2010 VA Physical Medicine & Rehab consult note, and a February 2012 VA pain clinic note. The examiner opined that it is at least as likely as not that there had been some degree of functional loss due to pain during flare-ups and after repeated use over time during the period from December 30, 2008 to July 6, 2017. However, the examiner provided that additional loss of range of motion during flare-ups and after repeated use over time during the period cannot be provided without resorting to undue speculation. To support his opinion, the examiner pointed out inconsistencies and/or symptom magnification during objective testing and observations noted in the two out of three previous examination reports and provided that it “essentially invalidates the Veteran’s subjective reports.” First, the examiner noted the April 2009 examiner’s notation of the presence of Waddell’s signs. The examiner explained that Waddell’s signs indicate possible symptom magnification or illness behavior. See April 24, 2009 Compensation and Pension Examination Report for Spine Examination, at 2 (“Waddell’s signs are positive for light touch only”). Next, the examiner noted the August 2013 examiner’s report of the inconsistent examination. In that regard, it was noted during the examination that the Veteran could not perform repetitive use testing with three repetitions because he stated that his back pain was so severe. However, the August 2013 examiner provided that the examination was inconsistent after careful evaluation of the Veteran while he was undressing. See August 2013 Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (DBQ), at 3. Also, the August 2013 examiner provided a comment in the end of the report that “[t]here seems to be some symptom magnification during the examination and observation afterwards.” Id., at 9 Further, the December 2019 examiner provided that the February 2012 range of motion examination found in the Veteran’s records cannot be used to estimate range of motion during flare-ups and after repeated use over time, because of the documentation of increase of pain with axial loading. See February 28, 2012 Pain Management History and Physical Note. The examiner explained that increase in pain with axial loading is one of the Waddell’s signs, which is an indicator of possible symptom magnification or illness behavior. After a careful review of the Veteran’s records, the Board found other range of motion testing results which was not mentioned by the December 2019 examiner. For example, an April 2011 record reflects that the Veteran’s lumbar spine flexion was limited to 60 degrees and extension was limited to 10 degrees with pain. See April 12, 2011 Pain Medicine Note. However, as the December 2019 examiner pointed out regarding the February 2012 range of motion testing, the examiner during the April 2011 testing also indicated that axial loading increased the Veteran’s pain level. Also, an August 2011 record shows that the Veteran’s lumbar spine range of motion was measured at flexion limited to 75 degrees and extension limited to 5 degrees with pain, but it was noted again that axial loading increased the Veteran’s pain. See August 9, 2011 Pain Management History and Physical Note. Thus, the Board concludes that an additional opinion from the December 2019 examiner is not required, although he did not consider the April and August 2011 range of motion testing results, since the examiner has already provided the reason for his inability to use range of motion testing results with a notation of axial loading increasing the pain level. The Board does not doubt that the Veteran was experiencing chronic pain due to his chronic lumbosacral strain during the period from December 30, 2008 to July 6, 2017. The Board also acknowledges that the Veteran has had some loss of range of motion of the lumbar spine during that period. However, as stated above, the issue in this case is whether the Veteran’s symptoms during that period amounted to functional impairment equivalent to forward flexion of the thoracolumbar spine limited to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Here, the evidence of record does not show such level of functional impairment during the period from December 30, 2008 to July 6, 2017. Notably, the April 2013 VA examination report indicates that the Veteran’s forward flexion ended at 45 degrees with painful motion beginning at 40 degrees. The Veteran was able to perform repetitive use testing with three repetitions during the April 2013 examination, and his post-test forward flexion ended at 45 degrees. See April 19, 2013 Back DBQ, at 1. Also, the April 2013 examiner indicated that the Veteran has IVDS, but had less than one week of incapacitating episodes over the past 12 months. Id., at 6. But see August 29, 2013 Back Conditions DBQ, at 7 (the examiner indicated that the Veteran does not have IVDS). Further, the evidence of record does not show that the Veteran has had favorable ankylosis of the entire thoracolumbar spine during the period from December 30, 2008 to July 6, 2017. Consequently, the Board finds that the current 20 percent evaluation is appropriate for the Veteran’s chronic lumbosacral strain for the period from December 30, 2008 to July 6, 2017, and the Veteran’s entitlement to an evaluation in excess of 20 percent for the period is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.71a, Diagnostic Codes 5237-5243 (2019). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. E. Kim, 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.