Citation Nr: 21004586 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 16-19 562A DATE: January 27, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for service-connected lumbar syndrome is denied. FINDING OF FACT The most probative evidence of record does not reach the level of equipoise as to whether the Veteran’s lumbar syndrome manifested either in forward flexion of the thoracolumbar spine limited to 30 degrees or less or in favorable ankylosis of the entire thoracolumbar spine. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 20 percent for service-connected lumbar syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 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 in the United States Marine Corps from April 1991 to March 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. By way of background, the claim was previously before the Board in September 2018, at which time the Board remanded the matter to the agency of original jurisdiction (AOJ) to afford the Veteran a new VA examination to assess the severity of his lumbar syndrome. Following further development by the AOJ, the matter was returned to the Board in November 2019, at which time the Board denied the Veteran’s claim for entitlement to a disability rating in excess of 20 percent for his service-connected lumbar syndrome. The Veteran appealed the Board’s denial to the United States Court of Appeals for Veterans Claim (the Court); and the Court subsequently issued a Joint Motion for Remand (JMR), vacating the Board’s November 2019 denial of the claim and remanding the matter back to the Board to provide adequate reasons and bases in its analysis of the merits of the Veteran’s appeal. Entitlement to a disability rating in excess of 20 percent for service-connected lumbar syndrome Disability evaluations are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.1. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt that may remain is to be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The veteran’s entire medical history is to be considered when assigning a disability evaluation. See 38 C.F.R. § 4.1; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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 concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be “staged.” Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating any musculoskeletal disability based upon range of motion, consideration is given to the degree of any additional limitation of motion due to functional loss. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated, involving such factors as painful motion, weakness, incoordination, fatigability, etc., particularly during times when these symptoms “flare up,” assuming these factors are not already contemplated in the governing rating criteria. Id.; see also 38 C.F.R. §§ 4.40, 4.45, and 4.59. Disabilities of the spine, including lumbosacral strain and lumbar syndrome, are rated under the General Rating Formula for Diseases and Injuries of the Spine, 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 an injury or disease. 38 C.F.R. § 4.71a. The General Rating Formula for Diseases and Injuries of the Spine provides, in pertinent part, that a 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; for a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or for 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, Code 5237. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. Notably, normal ranges of motion of the thoracolumbar spine are flexion from 0 degrees to 90 degrees, extension from 0 degrees to 30 degrees, lateral flexion from 0 degrees to 30 degrees bilaterally, and lateral rotation from 0 degrees to 30 degrees bilaterally. 38 C.F.R. § 4.71, Plate V; see also 38 C.F.R. § 4.71, General Rating Formula for Diseases and Injuries of the Spine, Note 2. An alternative Formula for Rating is available for intervertebral disc syndrome (IVDS) based upon incapacitating episodes. A 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the last 12 months of the applicable rating period. 38 C.F.R. § 4.71a, Code 5243. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the last 12 months of the applicable rating period. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the last 12 months of the applicable rating period. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the last 12 months of the applicable rating period. Here, the Veteran asserts that the severity of his service-connected lumbar syndrome warrants a disability rating in excess of the currently assigned 20 percent rating. See, e.g., Appellate Brief dated December 15, 2020. After a close and sympathetic review of the record, the Board finds that the evidence does not support finding that the Veteran’s lumbar spine disability warrants a disability evaluation greater than 20 percent disabling. For the period on appeal, the Veteran was first afforded a VA examination for his service-connected lumbar syndrome in May 2012. See VA examination dated May 17, 2012. In pertinent part, the examiner reported that the Veteran’s back disability, which was characterized as “lumbar myofascial pain syndrome,” did not result in flare-ups although the Veteran reported that it was “bothersome all the time.” Initial range of motion testing demonstrated forward flexion to 65 degrees, with objective evidence of painful motion beginning at 60 degrees; extension to 15 degrees, with objective evidence of painful motion beginning at 10 degrees; right lateral flexion to 30 degrees or greater, with objective evidence of pain beginning at 20 degrees; left lateral flexion to 25 degrees, with objective evidence of pain beginning at 10 degrees; right lateral rotation to 30 degrees or greater, with objective evidence of pain beginning at 30 degrees or greater; and left lateral rotation to 30 degrees or greater, with objective evidence of pain beginning at 30 degrees or greater. The Veteran’s range of motion testing, following repetitive use, was documented as forward flexion to 65 degrees; extension to 15 degrees; right lateral flexion to 30 degrees or greater; left lateral flexion to 25 degrees; right lateral rotation to 30 degrees or greater; and left lateral rotation to 30 degrees or greater. The Veteran’s thoracolumbar spine range of motion was noted not to have resulted in additional limitation following repetitive use testing. However, the Veteran reported functional loss and/or functional impairment of his back after the testing, manifesting in less movement than normal and pain on movement. Upon a physical assessment, the Veteran’s thoracolumbar spine demonstrated tenderness to palpation of the muscles but not guarding or muscles spasms. No radiculopathy was noted, nor were any other neurologic abnormalities or findings related to his back disorder. Furthermore, the Veteran did not report experiencing IVDS of the thoracolumbar spine. He relayed that he regularly uses a back brace to achieve normal locomotion. The clinician found that the Veteran’s back disorder did not cause functional impairment of an extremity such that no effective function remains other than that which would be equally well-served by an amputation with prothesis. The examiner observed that imaging studies of the Veteran’s spine revealed arthritis; and other pertinent diagnostic findings included earlier documentation of moderately advanced degenerative disc changes at the L5-S1 level with an associated 9 millimeter (mm) left paramedian disc protrusion causing nerve root impingement. Finally, the Veteran reported to the examiner that his back disability resulted in functional impairment insofar as the disability prevented him from performing work on-site as a welder and required that he weld objects while remaining stationary in the shop. Notably, the Board determined in its November 2019 decision that the May 2012 back conditions examination was inadequate for rating purposes, as the examination was not conducted in full compliance with the holdings in Correia. Specifically, the VA examiner did not indicate whether testing was conducted with both active and passive motions or in both weight-bearing and non-weight bearing or offer an opinion regarding the Veteran’s limitation of motion or function of the thoracolumbar spine with repetitive use over time. Thus, the Board finds the May 2012 examination to be of limited probative value. An August 2012 letter from the Veteran’s primary care physician indicated, in relevant part, that the Veteran’s spinal disability was treated with physical therapy, in addition to various medications including topical therapies, gabapentin for nerve pain, NSAIDs for inflammation, and narcotics. See document labeled “Third Party Correspondence” in VBMS, dated August 20, 2012. The physician also noted that the Veteran received epidural steroid injections but that such injections did not cause improvement. Pursuant to the Board’s September 2018 remand, the Veteran was afforded another VA examination in July 2019. See VA examination dated July 26, 2019. At that time, a clinician observed that the Veteran’s lumbar syndrome did not manifest in flare-ups but caused functional loss and/or impairment due to pain in the lower back, which prevents the Veteran from walking more than 15 minutes, standing in one position for more than 10 minutes, sitting in one position for more than one hour, bending or twisting the back, as well as preventing the Veteran from pushing, pulling, squatting, walking up or down stairs, lifting more than 40 pounds, and running. The Veteran described his lower back pain as “a constant aching sensation,” which typically ranges in severity from 4-7 on a pain scale of 1-10 and intermittently radiates pain from the lower back to both legs and feet, causing pain ranging from 4-7 in the right leg and 6-9 in the left leg, as well as numbness and tingling of both legs and feet. Furthermore, the Veteran relayed to the examiner that he had received approximately 8 injections for pain in his lower back from 2015 to 2019, each of which resulted in temporary improvement, lasting from 4-5 months. The Veteran was unable to perform initial range of motion testing, as well as repetitive use testing, due to the severity of his back pain at the time of examination. The clinician noted evidence of pain with weight bearing and non-weight bearing. Although the Veteran was not examined immediately after repetitive use of the thoracolumbar spine, the clinician noted that the physical examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. The clinician remarked that it would be speculative to report additional range of motion loss and whether pain, weakness, fatigability, or incoordination significantly limit functional ability when the thoracolumbar spine is used repeated over a period of time, as such range of motion measurements have not been documented in the medical record. Although the examiner noted that it is not possible to estimate specific limitations in terms of range of motion, using the Veteran’s lay statements regarding limitation of range of motion, he estimated that the Veteran’s range of motion of the thoracolumbar spine, following repetitive use over time, would be limited to forward flexion of 0-60 degrees; extension of 0-5 degrees; right lateral flexion of 0-25 degrees; left lateral flexion of 0-20 degrees; right lateral rotation of 0-25 degrees; and left lateral rotation of 0-25 degrees. The Veteran’s back was noted not to have exhibited guarding or muscle spasms; and the Veteran did not report radicular pain or any other signs or symptoms due to radiculopathy. The clinician observed no ankylosis of the Veteran’s spine and relayed that the Veteran did not experience IVDS of the thoracolumbar spine requiring bed rest. The Veteran conveyed that he did not rely on the use of any assistive devices as a normal mode of locomotion; and the Veteran’s back disorder was not noted to have caused functional impairment of an extremity such that no effective function remains other than that which would be equally well-served by an amputation with prothesis. Diagnostic testing confirmed the presence of arthritis of the thoracolumbar spine but revealed no other significant findings or results. The Board finds the July 2019 examination report particularly probative, as it not only complies with the requirements of Correia but as it also includes a thorough history of the Veteran’s spinal disability and documents the objective and subjective limitations the Veteran experiences due to his thoracolumbar spine disability. Turning to the application of the appropriate rating criteria, the Board concludes that the evidence of record does not support finding that the Veteran’s lumbar spine disability warrants a rating in excess of 20 percent disabling. Specifically, a rating of 40 percent is not warranted because the evidence of record does not demonstrate that the Veteran’s back disability results in either limitation of motion of forward flexion of the thoracolumbar spine to 30 degrees or less or in favorable ankylosis of the entire thoracolumbar spine even when considering the functional effects of pain, to include after repetitive use. Although the July 2019 VA examiner only provided estimated ranges of motion, these estimates were provided after thorough consideration of the Veteran’s reports regarding functional limitations. The examination findings do not suggest that the Veteran’s range of motion would change to the degree required for a higher rating after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record, to include the Veteran’s lay statements. Additionally, the Veteran’s lumbar syndrome is not eligible for consideration under the IVDS rating criteria because the record indicates that, throughout the period on appeal, he has not experienced incapacitating episodes requiring bed rest. Furthermore, a disability evaluation under Diagnostic Code 5003 for arthritis is not appropriate in this instance because the Veteran is in receipt of a compensable disability rating based upon limitation of motion under Diagnostic Code 5237. With respect to the possibility of assigning a higher rating under 38 C.F.R. §§ 4.40 and 4.45, there is no indication in the July 2019 examination report or in lay statements of record that any subjective complaints such as pain, fatigue, incoordination, or weakness, result in additional limitation of function so as to meet the criteria for a higher evaluation. Notably, the examiner considered the Veteran’s reported limitations due to pain in providing the estimated range of motion findings and there is no further evidence to suggest that the functional loss is equivalent to forward flexion limited to 30 degrees, such that a higher rating would be applied. As noted above, the Veteran reported to the July 2019 examiner that he experiences pain on rest/non-movement as well as during forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation. Regarding functional limitations of the lower back caused by pain, the Veteran relayed subjective limitations including an inability to walk for more than 15 minutes, stand in one position for more than 10 minutes, sit in one position (such as required for driving) for more than one hour, walk up or down stairs, lift more than 40 pounds, or run. Furthermore, the Veteran’s lower back pain precluded him from bending or twisting his back, as well as engaging in pushing, pulling, or squatting. Indeed, evidence of pain is an important factor for consideration. However, the Court has noted that “pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system.” Mitchell v. Shinseki, 24 Vet. App. 32, 33, 43 (2011). Rather, pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance to constitute a functional loss. Id. For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell, 25 Vet. App. at 37. 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. To the extent that the Veteran described back pain resulting in functional limitations, his lay assertions of record do not detail specific degrees of limitation or features of a back disability consistent with the higher rating criteria of 40 percent. As such, the limitations experienced by the Veteran are not supportive of higher ratings as they are contemplated by the rating criteria and the provisions of 38 C.F.R. §§ 4.40, 4.45 and 4.59. The Veteran’s lay statements have been considered. However, disability ratings are determined by the application of the rating schedule, which does not support a higher rating in this case. 38 C.F.R. § 4.2. The record likewise does not reflect that a referral for consideration on an extraschedular basis would be appropriate under the circumstances of this appeal, as the Veteran’s disability picture as presented in the lay and medical evidence of record is adequately contemplated by the assigned schedular rating based on limitation of motion. 38 C.F.R. § 3.321(b). The Board has also considered whether there is any other basis for granting further increased and/or additional ratings based on the evidence of record but has found none. In sum, as the most probative evidence does not reach the level of equipoise, the claim of entitlement to a disability rating in excess of 20 percent for the Veteran’s service-connected lumbar syndrome may not be granted. See 38 U.S.C. § 5107(a) (“[A] claimant has the responsibility to present and support a claim for benefits […]”); see also Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility). JENNA BRANT Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Tolbert, 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.