Citation Nr: 21001794 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 15-07 950 DATE: January 11, 2021 ORDER A rating in excess of 20 percent from May 15, 2018 for a service-connected lumbosacral strain with degenerative arthritis and degenerative disc disease (hereinafter lumbar spine condition) is denied. FINDING OF FACT For the period from May 15, 2018, the Veteran’s lumbar spine condition has not been manifested by forward flexion to 30 degrees or less. CONCLUSION OF LAW For the period from May 15, 2018, the criteria for a disability rating in excess of 20 percent for a lumbar spine condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.71a, Diagnostic Codes (DC) 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1969 to December 1969, with additional service in the Army National Guard. In April 2018, a videoconference hearing was held before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In August 2018 and April 2020, the Board remanded the Veteran’s claim for additional development. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. It is important that when evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. It is the intent of the schedule to recognize painful motion with joint or periarticular pathology as productive of disability. It is also the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit-of-the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Entitlement to a rating in excess of 20 percent from May 15, 2018 for lumbar spine condition. Service connection for the Veteran’s lumbar spine condition was established in an April 2014 rating decision and the Regional Office (RO) assigned a 10 percent disability rating effective May 20, 2010. In December 2019, the RO issued a rating decision, which, in part, increased the Veteran’s 10 percent disability rating for service-connected lumbar spine condition to 20 percent disabling, effective May 15, 2018. The Veteran now contends that he is entitled to an increased rating in excess of 20 percent for his service-connected lumbar spine condition for the period from May 15, 2018. The Veteran’s lumbar spine condition is rated under Diagnostic Code 5237 for a lumbosacral strain. Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), spinal conditions are evaluated under either the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Formula for Rating IVDS), whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. §§ 4.25, 4.71a, DC 5237. Under the General Rating Formula, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine between 30 and 60 degrees, or 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 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 rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. After a thorough review of the record, the Board has determined that a higher rating in excess of 20 percent is not warranted for the period from May 15, 2018. Contemporaneous VA treatment records from the appeal period show that the Veteran underwent periodic treatment for low back pain. He was noted to wear a back brace and took pain medication as part of his treatment for low back pain. Throughout the appeal period, the most pertinent and probative evidence of record consists of reports from multiple VA examinations conducted to evaluate the Veteran’s lumbar spine condition. In a May 2018 VA examination, the examiner diagnosed degenerative arthritis of the spine and a lumbosacral strain. During the examination, the Veteran reported experiencing functional impairment due to his lumbar spine condition. Specifically, he described limitations in lying on his back, prolonged walking, and standing. Additionally, he reported taking Tramadol, applying a TENS unit and wearing a back brace every day, and walking with a cane due to both knee and back pain. He also reported no flare-ups. Range of motion testing produced abnormal or outside of normal range findings. Specifically, forward flexion was recorded at 0 to 40 degrees, extension 0 to 10 degrees, right and left lateral flexion at 0 to 15 degrees, and right and left lateral rotation at 0 to 20 degrees. Pain was noted on forward flexion, extension, right and left lateral flexion, and right and left lateral rotation, but was not determined to cause functional loss. There was, however, pain noted on weight bearing, and repetitive motion testing was able to be performed with no additional loss of function or range of motion. The examiner was unable to say without mere speculation whether the indicated pain, fatigue, and weakness would significantly limit the Veteran’s functional ability with repeated use over a period of time, and this was described in ranges of motion as: forward flexion from 0 to 35 degrees, extension 0 to 30 degrees, right and left lateral flexion 0 to 15 degrees, and right and left lateral rotation from 0 to 20 degrees. The Veteran exhibited muscle spasms of the thoracolumbar spine that did not result in abnormal gait or abnormal spinal contour. The Veteran was noted not to have radiculopathy signs or symptoms. His straight leg test was negative. The Veteran was found not to have muscle atrophy and the examiner noted no other neurologic abnormalities or findings related to his thoracolumbar spine. Additionally, the Veteran demonstrated no ankylosis or IVDS of the thoracolumbar spine. The examiner noted that the Veteran used a brace regularly and a cane occasionally; no reason was provided for the use of these assistive devices. The examiner also noted that imaging studies of the thoracolumbar spine revealed arthritis. Finally, the examiner opined that the Veteran’s lumbar spine condition would impact his ability to work by limiting the ability of the Veteran to engage in prolonged standing or walking. In March 2019 the Veteran was afforded another VA examination to evaluate his lumbar spine condition. During the examination the Veteran reported being unable to lift more than ten pounds without pain, pain in the back while sitting, standing or walking, and difficulty getting up from a toilet or stool. The Veteran reported no symptoms of radiculopathy, ankylosis, or other neurological abnormalities. Furthermore, the examiner determined that the Veteran did not evidence IVDS. The Veteran reported constantly using assistive devices to include a cane and back brace. Additionally, the Veteran did not report experiencing flare-ups. Range of motion testing produced abnormal or outside of normal range findings. Specifically, forward flexion was recorded at 0 to 35 degrees, extension 0 to 10 degrees, right and left lateral flexion 0 to 10 degrees, and right and left lateral rotation 0 to 15 degrees. The examiner indicated that pain present while performing the movements resulted in functional loss to the Veteran. Additionally, the examiner noted objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. Furthermore, the examiner indicated that the Veteran was able to perform repetitive use testing with at least three repetitions and noted that no additional loss of function or range of motion was recorded as a result. The Veteran exhibited no guarding or muscle spasms. Muscle strength testing and sensory examination were all normal. However, the Veteran demonstrated hypoactive reflexes in both lower extremities. The straight leg raising test was negative on both lower extremities. Additionally, the Veteran exhibited no symptoms of radiculopathy, IVDS, or other neurologic abnormalities. The examiner found that the Veteran’s thoracolumbar spine would affect his ability to work because the Veteran is unable to lift more than 10 pounds or perform prolonged sitting, standing, or walking due to back pain. Furthermore, the examiner noted that the Veteran’s ability to get out of chairs was compromised due to his back pain. More recently, in August 2020, the Veteran underwent a VA examination to evaluate his lumbar spine condition. The Veteran reported that he experienced low back pain and discomfort when sitting, stooping, or bending, and that he had been wearing a back brace for the past two years to support his lumbar spine and required medication. He did not report any flare-ups of the thoracolumbar spine. Range of motion testing produced abnormal or outside of normal range findings. Specifically, forward flexion was recorded at 0 to 75 degrees, extension 0 to 20 degrees, right and left lateral flexion 0 to 25 degrees, and right and left lateral rotation 0-25 degrees. Additionally, the examiner opined that range of motion did not contribute to functional loss. Rather, the examiner explained, that pain from forward flexion and extension contributed to functional loss. No objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine was recorded. The Veteran was able to perform repetitive-use testing with at least three repetitions; however, additional loss of function or range was noted after repetitive use. Range of motion after three repetitions was recorded at flexion 0 to 75 degrees, extension 0 to 25 degrees, right and left lateral flexion at 0 to 25 degrees, and right and left lateral rotation at 0 to 25 degrees. The examiner indicated that pain, weakness fatiguability or incoordination significantly limited functional ability with repeated use over time. Range of motion after repeated use over a period of time was described as flexion 0 to 75 degrees, extension 0 to 20 degrees, right and left lateral flexion 0 to 25 degrees, and right and left lateral rotation 0 to 25 degrees. Although the examination was not conducted during a flare-up, the examiner noted that flare-ups significantly limited functional ability due to associated pain. The examiner indicated that the expected range of motion during a flare-up was the same as the Veteran’s initial range of motion. No muscle spasms, guarding, radiculopathy, ankylosis, IVDS, or muscle atrophy were noted on the examination. A straight leg raising test was performed and produced negative results on both lower extremities. Additionally, the sensory examination produced all normal results. Finally, the examiner opined that the Veteran’s lumbar spine condition would affect his ability to work as he was unable to sit or stand for prolonged periods of time and has difficulty lifting, bending, and carrying items. No objective evidence of back pain was noted in non-weight bearing activities. Additionally, passive range of motion for the back was recorded at: forward flexion 0 to 80 degrees, extension 0 to 20 degrees, right and left lateral flexion 25 degrees, and right and left lateral rotation 0 to 25 degrees. After reviewing the foregoing evidence, the Board finds that from May 15, 2018 a rating in excess of 20 percent is not warranted. During the relevant period on appeal, the lay and medical evidence of record indicates that the Veteran received a diagnosis of degenerative disc disease manifested by low back pain. Range of motion testing in both the May 2018 and March 2019 VA examinations, demonstrated that the Veteran displayed forward flexion of the lumbar spine from 0 to 35 degrees. Moreover, in the August 2020 VA examination, the Veteran exhibited forward flexion from 0 to 75 degrees. A higher evaluation of 40 percent is not warranted because the Veteran did not demonstrate unfavorable ankylosis of the entire cervical spine; or forward flexion of the thoracolumbar spine 30 degrees or less; or unfavorable ankylosis of the entire thoracolumbar spine. Additionally, the Veteran evidenced no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. In reaching this conclusion, the Board has considered the Veteran's competent testimony regarding difficulties walking and chronic low back pain. Unfortunately, pain by itself does not support an additional increased schedular rating under the mechanical application of the General Rating Formula for Diseases and Injuries of the Spine. The Board notes that at an April 2018 Board hearing, the Veteran reported experiencing flare-ups in his back pain when the weather was cold or rainy. Accordingly, this case was remanded on two separate occasions for a VA examiner to provide an addendum opinion considering flare-ups. However, despite multiple opportunities to do so, the Veteran has denied experiencing flare-ups. See August 2020 VA examination, March 2019 VA examination, May 2018 VA examination. Nevertheless, the Board acknowledges the reports of flare-ups detailed in the Veteran’s treatment records and at the Board hearing. Furthermore, the August 2020 VA examiner estimated what the Veteran’s disability picture would look like under flare-ups, however based on the symptoms reported, even those symptoms would not result in a higher disability rating. The Board has further considered whether a higher rating may be assigned alternatively by rating the disability by analogy under DC 5243 for intervertebral disc syndrome (IVDS), and whether a separate rating is warranted under 38 C.F.R. § 4.71a, General Rating Formula, Note (1) for any associated objective neurological abnormalities. Throughout the entirety of the appeal period, no neurological abnormalities or incapacitating episodes have been shown. Indeed, the Veteran has not complained of any neurological symptoms associated with his lumbar spine condition nor has he reported requiring physician-prescribed bed rest. See August 2020 VA examination, March 2019 VA examination, May 2018 VA examination. Accordingly, a higher rating under DC 5243 and/or a separate rating for a neurologic abnormality associated with the Veteran’s lumbar spine condition is not warranted. Finally, the Board acknowledges that VA examinations must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158 (2016). The Board has also considered the United States Court of Appeals for Veterans' Claims (Court's) holding in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), addressing 38 C.F.R. § 4.40, which states that a VA examiner must "express an opinion on whether pain could significantly limit functional ability" and the examiner's determination in such regard "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." In light of these requirements, the Board has carefully considered whether the August 2020 VA examination complied with Correia and Sharp. The examination considers active, passive, weight-bearing, and nonweight-bearing motions and, thus, complies with Correia. Additionally, the examination considered the effect that pain had on the Veteran’s functional ability, and thus satisfies Sharp. Significantly, however, to the extent that the March 2019 and May 2018 VA examination findings of record relative to the lumbar spine are not completely in compliance with Correia and Sharp, the Board finds that remand for additional examination would serve no useful purpose. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). In that regard, the Board emphasizes that the most recent August 2020 VA examination was compliant with Correia and Sharp, and any retrospective opinion would merely impose an additional burden on VA with no benefit flowing to the Veteran, as the VA would be asking an examiner to speculate. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Talton, John H. 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.