Citation Nr: 21003831 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 17-11 132 DATE: January 22, 2021 ORDER Entitlement to a 20 percent rating for low back strain from February 11, 2014 to December 18, 2019 is granted. Entitlement to a rating in excess of 20 percent rating for low back strain is denied. FINDING OF FACT 1. From February 11, 2014 to December 18, 2019, low back strain was manifested by muscle spasm severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 2. The Veteran’s low back strain is not manifest by forward flexion of 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine is not shown or more nearly approximated and there is no IVDS. CONCLUSION OF LAW 1. From February 11, 2014 to December 18, 2019, the criteria for a 20 percent rating and no higher for low back strain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5237. 2. The criteria for a rating in excess of 20 percent for low back strain have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1966 to July 1968. He appeals a February 2015 rating decision. A hearing was held before the undersigned Veterans Law Judge in August 2019 in Buffalo, New York. The transcript is of record. During the hearing, the VLJ clarified the issue, asked if there was outstanding evidence and held the file open for the submission of evidence. Such actions comply with 38 C.F.R. § 3.103. The Board remanded the claim in November 2019 for a new examination, deeming the examination record inadequate as the contemporaneous examinations failed to comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The Correia-compliant examination was accomplished in December 2019. In June 2020, the Agency of Original Jurisdiction (AOJ) granted a 20 percent rating for low back strain effective from December 18, 2019 but denied the appeal in all other respects. See June 2019 rating decision and Supplemental Statement of the Case (SSOC) In October 2020, the Veteran, through his attorney, argued in response to the SSOC that the 20 percent rating should be effective from the February 11, 2014 date of claim. We note that this is the actual argument he made in relation to this appeal, even though he characterized the claim as one for an effective date of February 11, 2014 for a 20 percent rating. While a Veteran is presumed to be seeking the maximum possible benefit, he is free to limit the scope of his appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993) (a claimant may limit an appeal to particular issues with expression of clear intent to do so). We do not find the October 2020 argument clearly and unambiguously limits the appeal; the entire appeal period remains at issue as to the increased rating claim. Furthermore, the assignment of a staged rating necessary includes consideration of the law and regulations governing effective dates. Whether addressed as a staged rating or an effective date, the result is the same. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged” ratings.” Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent (“flare-ups”) due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. This disability is rated under DC 5237 pursuant to the General Rating Formula for Diseases and Injuries of the Spine at 38 C.F.R. § 4.71, with consideration of DC 5010 for traumatic arthritis, consistent with the current diagnosis of low back strain and degenerative arthritis of the lumbar spine. We note that service connection is now in effect for right and left lower extremity sciatica related to the low back, though the rating for these conditions is not part of this appeal. See September 2020 rating decision. According to the General Formula, 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5237 (the General Rating Formula for Diseases and Injuries of the Spine is used for conditions which result in symptoms such as pain (with or without radiation), stiffness, or aching of the area of the spine affected by residuals of injury or disease). VA regulations define normal range of motion of the lumbar spine as flexion to 90 degrees, extension to 30 degrees, lateral flexion to 30 degrees, and rotation to 30 degrees. 38 C.F.R. § 4.71a, Plate V. 1. Entitlement to a 20 percent rating for low back strain from February 11, 2014 to December 18, 2019 is granted. It is argued by the Veteran’s attorney that the manifestations noted in the December 2019 examination that support a 20 percent rating, namely muscle spasm severe enough to result in abnormal gait, have been present throughout the appeal period that dates from February 11, 2014 rather than just as of the date of the 2019 exam. The Board agrees. We note that the record is replete with reference to his complaints of pain and back muscle spasm causing disturbance of locomotion and interference with standing. The examiner in 2019 observed that the Veteran is unable to stand up straight, ambulates hunched over, and is in fact constantly hunched over. This is consistent with the treatment and examination record during the entire appeal period. A 2017 VA examination (not Correia compliant) relevantly notes he is very stiff, has daily moderate pain (lessened by medication and therapy) and takes 2-3 hours to straighten to normal in the morning. Also, non-VA treatment records dated prior to December 2019 but within the appeal period reflect repeated observations of back spasm and episodic back pain on multiple occasions to include in October 2014.   There is thus no need for a staged rating as to the 20 percent award, particularly since we ordered the new examination due to prior examinations being noncompliant with controlling VA law. The 20 percent award is warranted from February 11, 2014. Here, we find it unlikely that the Veteran became worse on the day of an adequate examination. 2. Entitlement to a rating in excess of 20 percent rating for low back strain is denied. The preponderance of the evidence is against a rating in excess of 20 percent at any time throughout the appeal period. To wit, the December 2019 examination, consistent with the entire record, documents there is no ankylosis, IVDS or associated objective neurological abnormalities not already rated, including, but not limited to, bowel or bladder impairment at any time throughout the appeal period. Nor is there any indication that forward flexion of the thoracolumbar spine is limited to 30 degrees or less. Forward flexion at the December 2019 was normal on initial testing and limited at most to 75 degrees after three repetitions, with repeated use over time, or based on functional loss due to pain. This does not support a 40 percent rating, which requires limitation to 30 degrees. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine along with the Formula for Rating IVDS Based on Incapacitating Episodes, DC’s 5235-5243. As required by 38 C.F.R. § 4.59, joints were tested for pain on both active and passive motion, in weight bearing and non-weight bearing in the 2019 examination. Functional impact was factored into the reduced range of motion noted above by the examiner. The described manifestations do not warrant a higher rating based on the current record, and the painful motion is encompassed in the current rating.   The examiner explained that the back disorder has functional/occupational impact. The Veteran was retired for 20 years and had formerly worked in manufacturing. It was noted that there was no more than a week of work time lost in last 12 months. As the Veteran is unable to stand up straight, he has extreme difficulty with walking. As he experiences pain on flexion and extension, activities such as bending forward to pick objects up or reaching overhead are difficult. It was noted earlier in the exam that the Veteran uses a cane occasionally. This functional/occupational impact is consistent with the 20 percent rating and no higher. The self-report of flare ups indicate they occur once a year, and while severe, last 2-3 days. The treatment record reflects that the Veteran is consistently noted to be independent in his activities of daily living and physically active over a long period of time. See, e.g., November 2019 statement that he remains physically active and independent to ADLs and April 2012 statement that he is able to do his own ADLs. The current rating sufficiently compensates the Veteran for this disability with consideration of functional loss may be due to pain consistent with 38 C.F.R. § 4.40. There is no atrophy and muscle spasm are already specifically considered in establishing the 20 percent rating. There has been no credible evidence that he is worse functionally than is indicated in the detailed 2019 VA examination. The current evaluation contemplates remaining functional flexion greater than 30 degrees. There is no reliable evidence that remaining functional flexion is less than 30 degrees. Accordingly, the 20 percent rating adequately represents any functional impairment attributable to the disability at all relevant times. See 38 C.F.R. § § 4.41, 4.10.   For all the foregoing reasons, the preponderance of the evidence is against a rating in excess of 20 percent at any time during the pendency of the claim for this disability. Hart v. Mansfield, 21 Vet. App. 505 (2007). H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. RIPPEL 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.