Citation Nr: 21003786 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 14-03 777 DATE: January 22, 2021 ORDER Entitlement to an initial evaluation in excess of 10 percent prior to March 7, 2018, for a lumbar strain is denied. FINDING OF FACT Prior to March 7, 2018, the evidence of record reflects the Veteran’s lumbar strain manifested in pain, muscle spasms, and slight limitation of motion. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent prior to March 7, 2018, for a lumbar strain have not been met. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Marine Corps from August 2006 to August 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in August 2016. This case was previously before the Board in January 2018 and January 2020, when it was remanded for development. The case has been returned to the Board for further appellate review. Entitlement to an initial evaluation in excess of 10 percent prior to March 7, 2018, for a lumbar strain The Veteran’s lumbar spine disability is currently rated as 10 percent disabling prior to March 7, 2018, under Diagnostic Code (DC) 5242. Spine disabilities are typically rated under the same general formula, except for intervertebral disc syndrome (IVDS), which has an alternate rating formula for incapacitating episodes. 38 C.F.R. § 4.71a, DCs 5235-5243. As there is no evidence of IVDS during the period on appeal, the Board will consider the Veteran’s lumbar strain using the general formula rating schedule. Under the General Rating Formula for Diseases or Injuries of the Spine, a 10 percent rating for a lumbar spine disability is warranted where forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; there is muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or spinal contour; or there is vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is assigned where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or there is 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 evaluation is warranted for forward flexion of the thoracolumbar spine of 30 degrees or less. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is assigned for unfavorable ankylosis of the entire spine. All of these evaluations under the general formula for rating spine injuries consider the disabilities 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. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, a finding of which must be supported by adequate pathology and evidenced by visible behavior on motion. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability also include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Where functional loss is alleged due to pain upon motion, VA must consider the provisions of 38 C.F.R. § 4.40 and § 4.45. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Functional loss of a joint can give rise to a higher schedular rating, to include if such functional loss is due to pain, but pain itself does not rise to the level of functional loss contemplated by VA regulations. See Mitchell v. Shinseki, 25 Vet. App. 32, 37-38 (2011). The Board first notes VA attempted to obtain private chiropractic treatment records the Veteran identified as relevant to this claim. However, the Veteran did not provide authorization for VA to obtain the records on his behalf, nor did he provide copies of those records. Therefore, the Board will proceed with this decision based on the evidence available in the record. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (the duty to assist is not a one-way street). In November 2011, the Veteran reported worsening low back pain as well as muscle spasms; his VA physician ordered an x-ray, which returned normal results. The physician prescribed medication for pain and muscle spasms. In March 2012, the Veteran attended a VA spine examination, at which he reported constant low back pain that is worsened by any movement, particularly twisting. The Veteran reported being able to walk about half a mile and to stand for several hours at work. His description of the symptoms did not indicate that he experienced any flare-ups of the lumbar strain. The range of motion was measured to be 90 degrees in forward flexion; 30 degrees in extension; and 30 degrees in right and left lateral flexion and rotation. Objective evidence of painful motion was noted within five degrees of the end of the range of motion in forward flexion and extension. The range of motion did not change after three repetitions. In July 2012, the Veteran sought treatment for lower back pain worsening over the previous two months, which was increased with prolonged sitting or standing. He reported that the medications prescribed in November 2011 were not providing pain relief. In August and November 2012, the Veteran again complained of worsening low back pain, describing the pain as severe. In November 2012, the Veteran underwent an MRI of the lumbar spine, which revealed minimal disc bulge at L2-3; mild diffuse disc bulge at L3-4, L4-5, and L5-S1; and a tiny Schmorl’s node in the superior endplate of L3. No significant spinal canal or foraminal narrowing was noted. In July 2013, the Veteran reported increasing low back pain that was mild-to-moderate in severity. The Veteran’s physician recommended the Veteran continue physical therapy exercises and use the prescribed pain medication as needed. Also in July 2013, the Veteran obtained an evaluation from a private provider, who concluded the Veteran’s back disability limited him to Light category work but that he would be unable to sustain such work full-time. This includes exerting up to 20 pounds of force occasionally, up to 10 pounds frequently, or a negligible amount constantly, as well as walking or standing to a significant degree, sitting while pushing and/or pulling arm or leg controls, or constant pushing or pulling of materials with negligible force. The evaluator noted that pain limited all the testing, including upper body testing, but that the Veteran was able to complete all the tests administered until instructed to stop, including lifting from the floor to waist, repetitive trunk rotation, and dynamic pushing and pulling. The Veteran reported being independent in his home activities and tasks. The range of motion was noted to be “the hands reached to knee level” in forward flexion; 25 degrees in extension; 30 degrees in right and left rotation; 15 degrees in right lateral flexion; and 20 degrees in left lateral flexion. The evaluator did not indicate what tool was used to measure range of motion. The evaluator concluded the Veteran would be unable to work bent over, and identified position tolerance as a major area of dysfunction. In the Veteran’s August 2013 notice of disagreement, he reported that the March 2012 VA examiner did not use any tool to measure his range of motion, instead using visual judgment alone. Also in August 2013, the Veteran submitted a portion of a disability benefits questionnaire completed by his VA physician, which indicated arthritis had been documented by imaging. The VA physician also reported the Veteran’s low back pain is exacerbated by strenuous physical activity, walking, running, and lifting weights. In his January 2014 substantive appeal, the Veteran reported that he could perform absolutely necessary activities of daily living, but he had become increasingly limited by pain. He reported every activity had become intolerable, including tying his shoes, washing dishes, brushing his teeth, walking, standing, or sitting for more than five to ten minutes. In July 2014, the Veteran complained to his VA physician of worsening constant back pain, reporting that it was at an 8 out of 10 and felt like needles and knives. At an October 2014 orthopedic surgery consultation, the surgeon noted the November 2012 MRI was essentially normal. The surgeon also noted normal gait and lumbar range of motion, as well as tenderness throughout the lumbar spine. The surgeon opined there was no treatment or interventional treatment for the Veteran’s lumbar spine pain, because the spine was essentially normal. In November 2014, the Veteran attended another VA examination, at which he reported flare-ups from twisting and bending. He reported the flare-ups occur two or three times a day, lasting five to 20 minutes, and are moderate in severity. The Veteran also reported needing to switch between sitting and standing frequently while at work to accommodate his pain; he noted he could perform physical labor but experienced significant pain afterward. The range of motion was measured to be 90 degrees in forward flexion; 30 degrees in extension; and 30 degrees in right and left lateral flexion and rotation. Pain was noted in forward flexion and extension, but did not result in functional loss. The examiner noted muscle spasm and localized tenderness, though neither resulted in abnormal gait or spinal contour. In August 2016, the Veteran obtained a second private evaluation of his lumbar spine disability, which also concluded that he demonstrated the ability to perform work in the Light category. The evaluator noted the Veteran was limited in his performance by pain in the lumbar spine prior to being limited by strength or endurance, but did not demonstrate unusual pain behavior or overreaction to testing. The Veteran reported constant lumbar pain of 6 or 7 out of ten, with increased pain upon twisting, stooping, lifting, carrying, or prolonged periods of sitting. The Veteran’s range of motion was limited; it was measured using an inclinometer, so the Board cannot consider the measurements themselves as it cannot compare them to measurements taken with a goniometer. See 38 C.F.R. § 4.46. The Veteran was able to walk a mile without pain, but kneeling for three minutes, squatting for one minute, and stooping for less than 30 seconds all produced pain in his lumbar spine. He was able to lift and carry 20 pounds over a 50-foot distance and reach overhead with 10 pounds, though pain was provoked by the spine’s position with overhead reaching and was present independent of any weight. Also in August 2016, the Veteran testified at the Board hearing. He reported that, after work, he is unable to do anything physically other than take a shower and lie in bed. He noted that his job was more physical than his previous job with computers, but that even when he was sitting all day, he still experienced pain at the end of his work day. The Veteran testified that he has stopped playing sports and playing guitar because the pain is too great. He also testified that he tries to take a break every 30 minutes when he drives to relieve or prevent the pain of sitting in one position, and that he no longer ties his shoes to avoid the pain. The Veteran reported he moved back in with his parents to have help with housework and activities of daily living; as an example, he testified that it is difficult to carry a laundry basket. He reported that he does not go grocery shopping by himself but accompanies family members or friends to help carry some of the groceries. The Veteran testified that he tries to avoid twisting or bending, as these motions cause back spasms, and that he has to sit on a tall chair or get on the ground to put on his shoes. A September 2016 screening indicated the Veteran did not endorse difficulty with activities of daily living or problems with mobility, balance, and gait. In October 2016, the Veteran’s VA physician recommended a TENS unit, since the Veteran was unable to attend physical therapy sessions due to his work schedule. In February 2017, the Veteran attended a physical therapy consult to receive the TENS unit, where he reported constant lumbar pain at a 5 out of 10. He described the pain as shooting, sharp, deep, and radiating. His posture, gait, transfers, and strength were all noted to be within normal limits. In February 2018, the Veteran sought treatment for pain in his thoracic spine between his shoulders the morning after he carried 20-pound weights down to his basement. He did not complain of lumbar spine pain at this treatment visit. The Veteran attended another VA examination in March 2018, which is the basis for the increase in his current evaluation. However, this examination report does not contain any information specifically regarding the period prior to March 7, 2018, the date of the increase in evaluation. After careful review of the record, the Board finds that an increase is not warranted for the period on appeal. Although credible complaints of pain are well documented throughout the period on appeal, the record does not reflect that the Veteran’s pain limits the functional ability of his lumbar spine such that it approximates the criteria for a 20 percent evaluation. The Board first notes that, throughout the appeal period, the Veteran’s gait and posture was noted to be normal. VA examinations in March 2012 and November 2014, as well as the October 2014 orthopedic surgery consultation, all noted a normal range of motion. The Board acknowledges the Veteran argued in his notice of disagreement that the March 2012 VA examiner did not use a measuring tool to record his range of motion and the results are therefore not as accurate as those from the July 2013 private evaluation. There is a presumption of regularity that government officials “have properly discharged their official duties.” Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926)). The Board further notes the instructions in the VA examination report include using a goniometer; there is no requirement that the examiner specifically state that he or she used a goniometer. The examiner reported the measurements in degrees, which would imply measurement with a goniometer. The Veteran’s contention that the examiner did not use a goniometer, without more, does not rebut the presumption of regularity, and the Board finds the range of motion results from the March 2012 VA examination to be credible. The Board notes the July 2013 and August 2016 private evaluations both demonstrated limited ranges of motion of the lumbar spine. The forward flexion measurement from the July 2013 evaluation does not appear to be a full range of motion, but does appear to indicate a fair amount of forward flexion, as the examiner noted “hands reached to knee level.” However, the Board is unable to determine to what approximate degree the forward flexion was limited during this evaluation for the purposes of the evaluation criteria. Similarly, the August 2016 range of motion results indicate limitation but the Board is unable to determine to what degree, as the evaluation was performed using an inclinometer rather than a goniometer. Therefore, resolving doubt in favor of the Veteran, the Board notes some limitation of motion, but cannot determine an approximate measurement. Rather, the Board notes that the results from the rest of the testing in these evaluations indicate the Veteran was capable of Light work, which includes exertion of force, manipulating arm or leg controls, and walking or standing to a significant degree. Further, the Veteran was able to complete testing including lifting a weight from the floor to his waist and working in a kneeling position, although these resulted in reports of pain after some time. The completion of these tests, even with pain, indicates functional capacity of the lumbar spine. The Board has also taken into account the Veteran’s reports of pain in the lumbar spine. The Board does not doubt that the Veteran experiences lumbar spine pain in relation to his service-connected disability. In his substantive appeal, the Veteran alleges that he is able to complete the activities of daily living, but that doing so results in significant pain. The Board notes, however, that shortly after the Board hearing, in September 2016, the Veteran denied difficulties with activities of daily living in a VA treatment visit. At the Board hearing, the Veteran testified that he was able to perform a physical job, but afterward needed to rest to alleviate pain. He testified that he moved in with his parents for help with housework and activities of daily living. His testimony again emphasized that he is able to perform tasks, including twisting and bending, but upon doing so feels pain or muscle spasm. The Veteran is compensated for painful motion under the current 10 percent evaluation. Further, the rating schedule for spine disabilities specifically considers the disabilities with or without pain. Therefore, a higher rating must be based on functional limitation. Although the record prior to March 7, 2018, indicates that physical exertion of the lumbar spine exacerbates the Veteran’s pain, the record does not indicate that the pain limits the functional capacity of the Veteran’s lumbar spine during this period to a degree approximating less than 60 degrees in forward flexion, abnormal gait, or abnormal posture, which are the criteria for a 20 percent evaluation. Therefore, an increased rating for this period is not warranted under the general spine formula. The Board has also considered application of other diagnostic codes for evaluating this disability; DC 5003 is the only applicable code, as it governs degenerative arthritis of any joint. However, a rating higher than 10 percent is not available to the Veteran under this code, as the lumbar spine is considered a minor joint group, see 38 C.F.R. § 4.45(f), and no other service-connected joint group is involved in this disability. See 38 C.F.R. § 4.71a, DC 5003.   Therefore, an increased evaluation is not warranted for the lumbar strain during the period prior to March 7, 2018. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Josey, 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.