Citation Nr: 21003711 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 13-32 736 DATE: January 22, 2021 ORDER Prior to February 6, 2018, entitlement to a rating in excess of 10 percent for service-connected chronic lumbosacral strain with degenerative disc disease (“low back disability”) is denied. From February 6, 2018, entitlement to a rating in excess of 20 percent for service-connected low back disability is denied. FINDINGS OF FACT 1. Prior to February 6, 2018, the Veteran’s low back disability had forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; no ankylosis was shown. 2. From February 6, 2018, the Veteran’s low back disability had forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; and no ankylosis. CONCLUSIONS OF LAW 1. Prior to February 6, 2018, the criteria for a rating in excess of 10 percent rating for a low back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5237. 2. From February 6, 2018, the criteria for a rating in excess of 20 percent rating for a low back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from July 2002 to June 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2016, the Veteran testified at a videoconference hearing. The transcript of the hearing is of record. By way of background, during the appeal period, a September 2013 rating decision found that the Veteran is entitled to a 10 percent disabling rating effective May 31, 2012 for his low back disability. Then, in a January 2014 rating decision, VA found that there was clear and unmistakable error in the evaluation of the Veteran’s low back disability and retroactively increased the Veteran’s disabling rating to 10 percent effective June 24, 2006. In September 2017, the Board remanded the issue for further evidentiary development. In July 2018, VA increased the Veteran’s low back disability rating to 20 percent, effective February 6, 2018. In October 2018, the Board remanded the issue on appeal as the RO did not substantially comply with the September 2017 Board remand order. The Board finds that the RO substantially complied with the October 2018 Board remand order. Specifically, the Board notes that VA requested further information from the Veteran regarding the alleged 2010 examination and to identify all treatment records (private treatment to include from the Elm Street Clinic and/or VA medical treatment) not previously considered for the issues on appeal. See October 2019 Subsequent Development Letter. The Veteran did not respond to VA’s request. The requested VA records were associated with the claims file. The Board notes that the record reflects that the Veteran was provided an October 2020 letter indicating that the Veteran could request a virtual tele-hearing instead of waiting for a travel board hearing. Upon further review, the Veteran does not have a pending hearing request. The Veteran provided testimony in a hearing with the undersigned in December 2016. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That being said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007); see also Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All spine disabilities covered by Diagnostic Codes 5235 to 5242 are rated according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula) based on limitation of motion. 38 C.F.R. § 4.71a, General Formula. Under the General Formula, the spine is evaluated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. Under the General Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; and muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, 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 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. Concerning disabilities affecting the spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Formula, Note 1. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Id. at Note 2. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation, with the normal combined range of motion of the thoracolumbar spine being 240 degrees. 1. Prior to February 6, 2018, entitlement to a rating in excess of 10 percent for service-connected low back disability is denied. 2. From February 6, 2018, entitlement to a rating in excess of 20 percent for service-connected low back disability is denied. At the outset, the Board notes that the Veteran filed her claim for entitlement to an increased rating for her low back disability in June 2010. Based on the evidence of record, the Board finds that the Veteran’s low back disability is consistent with a 10 percent rating prior to February 6, 2018 and 20 percent thereafter. A review of the records shows that the Veteran was afforded VA examinations in May 2012 and February 2018. In the May 2012 VA examination, the Veteran complained of increased low back pain that radiates to the left knee. There was no reference to numbness or tingling. The Veteran endorsed having flare-up with occasional lifting. On examination, the Veteran had a forward flexion to 80 degrees with objective evidence of painful motion; extension to 20 degrees with objective evidence of painful motion; right and left lateral flexion to 30 degrees with objective evidence of painful motion; right lateral rotation to 30 degrees with no objective evidence of painful motion; and left lateral rotation to 15 degrees with no objective evidence of painful motion. There was no additional loss of motion or functional impairment with repetitive use. There was no guarding of the thoracolumbar spine. The Veteran displayed normal muscle strength, reflexes, and sensation. The Veteran was found positive on bilateral straight leg raising test and negative on radiculopathy. The Veteran was noted to not have intervertebral disc syndrome (IVDS). In the December 2016 hearing, the Veteran claimed that she could only bend about 30 degrees from a standing position. The Veteran also stated that she has 8 weeks of incapacitating episodes out of 12 months that required bed rest prescribed by a physician due to her low back disability. However, later, the Veteran clarified that she was not prescribed bed rest but that she did it on her own. The Veteran also stated that she missed work as a secretary due to her low back disability. As such, the Board remanded the Veteran’s claim for a new VA examination due to the Veteran’s claim of worsening symptoms. In the February 2018 VA examination, the Veteran reported that her low back pain was provoked by sitting, standing and sometimes walking. The Veteran stated that her back pain limits her ability to bend and lift. On examination, the Veteran had a forward flexion to 60 degrees, extension to 10 degrees, right and left lateral flexion to 20 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 10 degrees with objective evidence of painful motion. There was evidence of pain with weight bearing. There was no additional loss of motion or functional impairment with repetitive use. The examiner noted that the Veteran’s pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time, however the Veteran was unable to describe the functional limitation in terms of range of motion. The examiner indicated that the examination was not being conducted during a flare up and as such the examination is neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare-ups. There was no guarding of the thoracolumbar spine. The Veteran displayed normal muscle strength, reflexes, and sensation. The Veteran was found positive on bilateral straight leg raising test. The Veteran was noted to have moderate radiculopathy of the left lower extremity. There was no evidence of ankylosis of the spine. The Veteran did not have intervertebral disc syndrome (IVDS). The examiner did not opine as to the functional impact that the Veteran’s low back disability has on her ability to work. The Board finds that the findings from the VA examinations are consistent with the medical records. For instance, in the March 2012 and May 2012 VA treatment records the Veteran was noted to have limited lumbar active range of motion. See July 2020 CAPRI and July 2015 CAPRI. In June 2013, the Veteran was noted to have lumbar disc herniations as a result of having limited mobility. See August 2013 Medical Treatment Record – Non-Government Facility. In May 2015 VA treatment record, the Veteran reported some numbness in her left leg radiating from her low back to her foot. See July 2015 CAPRI. Despite the Veteran’s low back disability, in November 2019 VA medical record, the Veteran reported that she works as a postal carrier. See June 2020 VAMC Other Output/Reports. Based on the records, the Board finds that the Veteran’s low back disability is consistent with a 10 percent rating prior to February 6, 2018 and 20 percent thereafter. Prior to February 6, 2018, the Veteran was able to forward flex, at worst, 80 degrees; extend at worst, to 20 degrees; with a combined range of motion, at worst, of 205 degrees. These findings are consistent with a 10 percent disabling rating. From February 6, 2018, the Veteran was able to forward flex, at worst, 60 degrees; extend at worst, to 10 degrees; with a combined range of motion, at worst, to 130 degrees. These findings are consistent with a 20 percent disabling rating. The Veteran is not entitled to the next higher rating of 40 percent disabling rating as there is no evidence that the Veteran’s forward flexion of the thoracolumbar spine is 30 degrees or less, or that the Veteran exhibited ankylosis of the thoracolumbar spine. Thus, the Board finds that the Veteran’s low back disability did not more nearly approximate the criteria for a rating in excess of 10 percent prior to February 6, 2018 and in excess of 20 percent thereafter. 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5242-5237. (Continued on the next page)   As for the Veteran’s statement that she is entitled to a higher rating as she has difficulties bending, sitting, standing, walking and lifting, the Board notes that for all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, pain, decreased or abnormal excursion, strength, speed, coordination, flare-ups, or endurance. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 205 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; incoordination; pain on movement; swelling; deformity; instability of station; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59. While the Veteran has complained of difficulties bending, sitting, standing, walking and lifting, such complaints are contemplated by the rating criteria and the provisions of 38 C.F.R. §§ 4.40, 4.45 and 4.59. The Board also notes the Veteran’s testimony that she could only bend about 30 degrees. However, the Board observes that this statement is inconsistent with the other evidence of record, to include the two VA examinations, wherein she was observed upon testing to have flexion as reflected above, which was greater than 30 degrees. The Board credits this observed range of motion over her self-reported estimation. Accordingly, the Veteran’s claims for increased ratings are denied. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Noh, 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.