Citation Nr: 21000576 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 10-39 336 DATE: January 5, 2021 ORDER Entitlement to an increased rating in excess of 20 percent prior to July 29, 2019 for a lumbar spine disorder is denied. Entitlement to an increased rating in excess of 40 percent from July 29, 2019 for a lumbar spine disorder is denied. FINDINGS OF FACT 1. Prior to July 29, 2019, the Veteran’s lumbar spine is limited, at worst, to 45 degrees of flexion. 2. From July 29, 2019, the Veteran’s lumbar spine is limited, at worst, to 20 degrees of flexion with no ankylosis. 3. During the entire period on appeal, the Veteran does not have incapacitating episodes requiring physician prescribed bedrest having a duration of at least four weeks or more. CONCLUSIONS OF LAW 1. Prior to July 29, 2019, the criteria for a rating in excess of 20 percent for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237 (2019). 2. From July 29, 2019, the criteria for a rating in excess of 40 percent for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1989 through April 1999. The Board acknowledges that this appeal has a lengthy procedural history. Most recently (and in pertinent part), the claim for increased ratings for his lumbar spine disability was remanded for evidentiary development in June 2020. The appeal with respect to these issues has since been returned to the Board for further consideration. Entitlement to an increased rating in excess of 20 percent prior to July 29, 2019 for a lumbar spine disorder and in excess of 40 percent thereafter The Veteran contends that he is entitled to higher ratings for his low back disorder. The Veteran has separate ratings assigned for radiculopathy of each lower extremity. Those ratings are not currently at issue in this appeal. Disability ratings are based as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. 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. The Veteran’s degenerative disc disease is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242-5237. Under the General Rating Formula for Diseases and Injuries of 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. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. 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. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Veteran was afforded a VA examination of the back in October 2015. The examiner noted diagnoses of lumbosacral strain and intervertebral disc syndrome. The Veteran reported persistent pain since 1990. He treats with over-the-counter medications. The Veteran reported flare ups causing pain and functional loss, limiting his ability to run, work out, or do physical work. Range of motion testing showed flexion limited to 45 degrees, extension limited to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 30 degrees, and bilateral rotation to 30 degrees. There was evidence of pain with weight bearing but not evidence of localized tenderness or pain on palpation. The Veteran was unable to perform repetitive use testing due to pain. There was no guarding or muscle spasm. The examiner noted that additional contributing factors of disability included “less movement than normal due to ankylosis, adhesions, etc.” Muscle strength testing was normal with no atrophy, and reflex and sensory testing were normal. The Veteran has IVDS and the examiner noted that the Veteran had physician-prescribed episodes of bedrest but did not specify the amount of time. The examiner noted no use of assistive devices. Regarding functional impact, the examiner noted the Veteran’s spine disorder did not impact his ability to work. A February 2016 rating decision increased the Veteran’s rating for his lumbar spine disorder to 20 percent, effective October 7, 2015, the date of the examination. An August 2017 MRI showed moderate multilevel degenerative disc disease and facet arthropathy resulting in mild L2-L3 spinal stenosis, mild L3-L4spinal stenosis, and severe left L5-S1 neural foraminal narrowing. The Veteran was afforded a VA examination of the spine in July 2019. The examiner noted a diagnosis of degenerative arthritis of the spine. He reported constant, chronic back pain and limitations on his ability to stand or walk for long periods of time. The Veteran’s lumbar spine disability also precludes his ability to run. Flare-ups occur daily and are severe. Range of motion testing showed flexion limited to 20 degrees, extension limited to 10 degrees, bilateral flexion limited to 10 degrees, and bilateral rotation limited to 10 degrees. The examiner also noted localized tenderness and pain on palpation. There was no evidence of pain with weight-bearing. The Veteran was able to perform repetitive use testing with no additional limitations. The examination was after repetitive use over time and during a flare up and the Veteran was limited by pain, fatigue, and weakness but the examiner could not describe in terms of range of motion. The Veteran had difficult standing, walking, and sitting for greater than 10 mins. There was no evidence of pain on passive range of motion testing or non-weight bearing. Muscle strength testing was normal with no atrophy, and reflex testing was normal. There was no ankylosis. The Veteran did not have IVDS or incapacitating episodes. Regarding functional impairment, the examiner stated that the pain has worsened, range of motion has diminished, and he has more difficulty standing, walking, or sitting for greater than 10 minutes. Upon review of the record, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the Veteran’s lumbar spine disorder, prior to July 29, 2019 and in excess of 40 percent thereafter. Prior to July 29, 2019, the objective range of motion findings show flexion limited to 45 degrees. Although the examiner noted that the Veteran was unable to perform repetitive use testing due to pain, the Board has considered the Veteran’s pain and functional limitations in the assigned ratings. From July 29, 2019, the VA examination showed flexion limited to 20 degrees. There was no ankylosis shown to warrant a higher rating. The Board has considered treatment records showing pain in the lumbar spine and acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain during flare-ups and pain during repetitive use over time. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the Veteran’s statements did not result in limitation of motion more nearly approximating the criteria for higher ratings during the relevant time periods. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. Although the October 2015 VA examiner noted a diagnosis of IVDS and incapacitating episodes; neither the VA examiners nor the treatment records show physician-prescribed episodes of bedrest having a total duration of at least four weeks, meeting the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. (Continued on the next page)   Regarding neurological impairment, as noted, the Veteran has already been granted service connection for associated radiculopathies and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. Based on the foregoing, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for a lumbar spine disorder prior to July 29, 2019 and in excess of 40 percent thereafter. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. M. Miller Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shana Z. Siesser, 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.