Citation Nr: 21002531 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-11 290A DATE: January 13, 2021 ORDER Entitlement to increased evaluation for chronic lumbar strain higher than 20 percent prior to October 12, 2020, and higher than 40 percent thereafter, is denied. FINDINGS OF FACT 1. Prior to October 12, 2020, the Veteran’s lumbar spine disability was manifested by forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees, and with no evidence of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. 2. From October 12, 2020, the Veteran’s lumbar spine disability is not productive of unfavorable ankylosis of the entire thoracolumbar spine, and there is no evidence of incapacitating episodes having a total duration of at least six weeks during the past 12 months. CONCLUSION OF LAW The criteria for entitlement to an evaluation higher than 20 percent, prior to October 12, 2020, and higher than 40 percent thereafter, for lumbar spine disability have not been met. 38 U.S.C. § 1155, 5107(b); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.7, 4.10, 4.14, 4.21, 4.40, 4.41, 4.45, 4.59, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a Veteran who served on active duty from March 1978 to February 1981. This matter is before the Board of Veterans’ Appeals (Board) on appeal from rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, a Travel Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran’s claims file. 1. Entitlement to increased evaluation for chronic lumbar strain higher than 20 percent prior to October 12, 2020 and higher than 40 percent thereafter. Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), a 10 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or muscle spasm, guarding or localized tenderness not resulting in abnormal gait or abnormal spinal contour or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; or where forward flexion of the cervical spine is greater than 15 degrees, but not greater than 30 degrees; or where the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or where the combined range of motion of the cervical spine is not greater than 170 degrees; or where muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted where forward flexion of the cervical spine is 15 degrees or less; or where there is favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine; or where forward flexion of the thoracolumbar spine is limited to 30 degrees or less; or where there is 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. Id. Note 1 to this rating schedule states that any associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are to be evaluated separately under appropriate diagnostic codes. In the alternative, an evaluation can be assigned under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Intervertebral disc syndrome is to be evaluated either under the new general rating formula for diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes, whichever method results in a higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. For intervertebral disc syndrome manifested by incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent evaluation is warranted; with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent evaluation is warranted; with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent evaluation is warranted; and with incapacitating episodes having a total duration of at least one weeks but less than two weeks during the past 12 months, a 10 percent evaluation is warranted. Note 1 of that code provides that, for purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is 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. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flareups. 38 C.F.R. § 4.14. The Court has held that “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” See Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain may result in functional loss, but only if it limits the ability to “perform the normal working movements of the body with normal excursion, strength, speed, coordination[, or] endurance.” Id. (quoting 38 C.F.R. § 4.40). Additionally, CAVC, in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The Veteran is in receipt of a 20 percent rating prior to October 12, 2020, and a 40 percent rating thereafter, under diagnostic code 5242. In 2006, the Veteran underwent a microdiskectomy of L4-5 and he underwent a second diskectomy in 2009. In 2010 he had a lumbar fusion. In a June 2014 rating decision, the RO granted service connection for a chronic lumbar strain with a 20 percent evaluation, effective July 30, 2009. In April 2014, the Veteran underwent an examination. He reported back pain, with left lower extremity paresthesias and pain to his foot. He was diagnosed with a chronic lumbar strain and lumbar degenerative disease with left radiculopathy. His range of motion was flexion to 90 degrees, extension 0 to 10, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 15 degrees. He had pain with movement. The examiner stated the Veteran’s lumbar strain is at least as likely as not a result of his active service. As for lumbar degenerative disease with left radiculopathy, the examiner stated these are less likely than not caused by or a result of active service. In February 2016, the Veteran underwent another examination. He was diagnosed with degenerative arthritis of the spine, status-post spinal fusion. The examiner stated there was no objective evidence to support a diagnosis for a lumbar strain. Range of motion was flexion to 35 degrees, extension to 20, right and left lateral flexion to 30, and right and left lateral rotation to 30. Flare-ups were described as result in an inability to stand or walk for a long period time, and functional loss was described as an inability to pick things up off the floor. There was no pain on examination, or tenderness or pain on palpation of the joint. There was not any additional loss of motion following three repetitions. He was not examined following repetitive use over time or during a flare-up, and the exam was deemed neither medically consistent or inconsistent with his described functional loss. Pain limited functional ability with repeated use and during a flare-up, with the examiner unable to describe this in terms of range of motion as it would be speculative. He has no guarding or muscle spasms. He has unfavorable ankylosis of the entire thoracolumbar spine. In September 2015 and May 2016 statements, the Veteran asserted he should be evaluated at a higher evaluation for his back. He testified at the Board hearing to a worsening of back symptoms. He reported experiencing pain during a flare-up. He reported pain with prolonged sitting, standing, and bending. The Veteran underwent an examination in October 2020, and was diagnosed with chronic lumbar strain, degenerative arthritis of the spine, intervertebral disc syndrome (IVDS), and spinal fusion. He described his symptoms as constant dull aching pain that has progressed to sharp stabbing pain, decreased range of motion, stiffness, fatigue, swelling, weakness lack of endurance and incoordination. He denied experiencing flare-ups of the spine. Functional impairment was described as limitation in bending, stooping, pushing, pulling, carrying, hauling, running, and standing, sitting, walking, climbing, squatting or standing, walking or driving for a long period. The impact on his ability to work was moderate to severe limitation in use of axial skeleton. Range of motion testing revealed flexion to 25 degrees, extension to 15, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 10 degrees, with pain. There is objective evidence of pain with palpation at his mid to lower back, moderate in severity. There was no additional loss of function or range of motion after three repetitions. He was not examined immediately after repetitive use over time or during a flare-up, and the examination was deemed neither medically consistent or inconsistent with his statements describing functional loss with repetitive use over time or during a flare-up. The examiner noted that the Veteran’s pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time, which was descried in terms of range of motion was: flexion to 20, extension to 10, right and left lateral flexion to 5, and right and left lateral rotation to 5. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with a flare-up, and the Veteran denied flare-ups. He did not have guarding or muscle spasms. He had IVDS that has not resulted in any episodes of signs and symptoms that required bed rest prescribed by a physician. He had a scar located at his mid to lower back that measured 20 cm by 0.1cm. It was not unstable or painful. He worked as a carpenter, and had lost 1 to 2 weeks of work in the last 2 months. His lumbar strain, IVDS, and degenerative arthritis, resulted in limitation in bending, stooping, pushing, pulling, and carrying and lifting moderate objects. There was objective evidence of pain when the spine was non-weight bearing. Passive range of motion of the spine was not performed as it is not feasible to do this is in a safe and reasonable manner. Opposing joint assessment was not applicable because the spine does not have an opposing joint. The examiner concluded it is more likely than not that he Veteran’s IVDS, bilateral lower extremity radiculopathy, and degenerative arthritis of the spine represent a progression of the chronic lumbar strain he suffered while in service. His current symptoms remained consistent. There was no indication of ankylosis of the spine. The preponderance of the above evidence demonstrates that the Veteran is not entitled to an evaluation higher than 20 percent prior to October 12, 2020. To meet the criteria for a 40 percent rating, flexion would have to be limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine under diagnostic code 5242. Under Diagnostic Code 5243, there would have to be IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. The Veteran is competent to report on symptoms, and the Board has considered his complaints in reaching this decision. The Veteran is not competent; however, to determine whether this lumbar spine disability meets the criteria for a higher rating. Prior to October 12, 2020, the record shows that the Veteran’s flexion on exam was found to be, at worst, to 35 degrees, with no evidence of further limitation following repetitive motion or during a flare-up. The functional impact was described as inability to stand or walk for a long period of time, and an inability to pick things up off the floor. There was no specific weakness, fatigability, or incoordination noted. Furthermore, there was no evidence of muscle spasms, tenderness, or guarding. Flare-ups were described as an inability to stand or walk for a long period time, and functional loss was described as an inability to pick things up off the floor. There was not any additional loss of motion following three repetitions. He was not examined following repetitive use over time or during a flare-up, and the exam was deemed neither medically consistent or inconsistent with his described functional loss. Although the 2016 examiner indicated the Veteran suffers from ankylosis, this is not supported by the findings on examination of motion or in the clinical records, and as was found at the 2020 examination, the Veteran does not have ankylosis of the spine. Therefore, even considering loss due to pain after repetitive use and during a flare-up as described by the Veteran, he is not entitled to an evaluation higher than 20 percent under the General Rating Formula for Diseases and Injuries of the Spine. His symptoms prior to October 12, 2020 did not more nearly approximate flexion limited to 30 degrees or less, nor was there ankylosis—even considering his lay reports of symptoms and functional impact. Higher evaluations are also available for intervertebral disc syndrome. The Veteran has been diagnosed with IVDS; however, there is no probative evidence of record of the Veteran seeking treatment for incapacitating episodes, or that he has been prescribed bed rest by a physician. Therefore, based on the probative evidence of record, the Veteran is not entitled to an evaluation higher than 20 percent prior to October 12, 2020. The Board finds that from October 12, 2020, the criteria for a rating in excess of 40 percent have not been met. During his October 2020 examination, the Veteran had painful motion, and revealed flexion to 25 degrees, with no evidence of ankylosis. He denied flare-ups. The examiner estimated that pain, weakness, fatigability and incoordination significantly limit functional ability with repeated use over time, in terms of range of motion as resulting in flexion limited to 20 degrees. He had pain to palpation at his mid to lower back, and there was no indication of muscle spasms, or guarding. These findings are consistent with a 40 percent rating. The Board notes that ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Dorland’s Illustrated Medical Dictionary 93 (30th ed. 2003). See also 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, NOTE (5) (defining ankylosis as fixation of a joint in a particular position). Given the motion found by the VA examiners and VA medical providers, the Board finds that that the Veteran does not have ankylosis of the thoracolumbar spine. As such, an evaluation in excess of 40 percent is not warranted. Again, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca, supra. The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. To be entitled to the next higher evaluation of 50 percent, there must be ankylosis of the entire thoracolumbar spine, of which there is no evidence. The next higher evaluation is not warranted. Higher evaluations are also available for IVDS, and though he has been diagnosed with IVDS, there are no indications of doctor prescribed bed rest. Note (1) of 38 C.F.R. § 4.71a also instructs the rater to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Separate ratings have already been assigned for left lower extremity sciatic nerve radiculopathy and left lower extremity femoral nerve radiculopathy, which were addressed by the Board in the August 2020 decision. To date, there is no indication of right lower extremity radiculopathy or any other neurological condition. As such, the record does not show any other neurological abnormalities associated with the Veteran’s lumbar spine. Accordingly, a separate rating for another neurological disability is not warranted. With respect to his lumbar spine scar, the Veteran is in receipt of a noncompensable evaluation for his lumbar scar. Throughout the rating period, the Veteran’s scar has been described as linear, not painful, and not unstable. 38 C.F.R. § 4.118. A compensable evaluation is warranted if the scar is painful or unstable. There is no indication the scar has been painful or unstable, hence further discussion is not warranted. The Board finds the Veteran is competent to report on symptoms. This competent and credible lay evidence; however, is outweighed by competent and credible medical evidence that evaluates the actual nature of his disability based on objective data coupled with the lay complaints. In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran’s complaints. For these reasons, greater evidentiary weight is placed on the examination findings regarding the type and degree of impairment. Accordingly, entitlement to an evaluation higher than 20 percent prior to October 12, 2020, and higher than 40 percent, thereafter, is not warranted. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Skiouris, 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.