Citation Nr: 21062614 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 16-16 265 DATE: October 8, 2021 ORDER A disability rating in excess of 20 percent for the service-connected degenerative arthritis of the lumbar spine is denied. FINDING OF FACT The degenerative arthritis of the Veteran's lumbar spine has not been manifested by forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, or intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks during any 12 month period. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for the service-connected degenerative arthritis of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5237, 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1986 to August 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision. During this appeal, the Veteran testified via video conference at a hearing before the undersigned Veterans Law Judge in November 2019. A transcript of the hearing is of record. While the Veteran's disability was previously characterized as a lumbar strain, a February 2020 VA examination revealed that her disability has now progressed to degenerative arthritis of the lumbar spine. Thus, the Board has recharacterized the disability as noted above. In a May 2020 decision, the Board denied the Veteran's appeal for a disability rating in excess of 20 percent for the service-connected degenerative arthritis of the lumbar spine. She appealed that Board decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a joint motion for remand, in a July 2021 Order, the Court remanded that Board decision for readjudication in accordance with the joint motion. Increased RatingDegenerative Arthritis of the Lumbar Spine 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 identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating 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. The Veteran's lumbar strain had been rated under Diagnostic Code 5237. 38 C.F.R. § 4.71a. However, as noted above, her disability has progressed to degenerative arthritis of the lumbar spine, which is rated under Diagnostic Code 5242. The following ratings are available for both Diagnostic Code 5237, lumbosacral strain, and Diagnostic Code 5242, degenerative arthritis of the spine, under the General Rating Formula for Diseases and Injuries of the Spine: 100 percent for unfavorable ankylosis of the entire spine; 50 percent for unfavorable ankylosis of the entire thoracolumbar spine; 40 percent for forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; and 20 percent for 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 not greater than 120 degrees; or 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. 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. Plate V, 38 C.F.R. § 4.71a. Under Diagnostic Code 5243 for intervertebral disc syndrome, such disability may also be rated under The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides for a 20 percent rating when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) defines an incapacitating episode as 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. 38 C.F.R. § 4.71a. At an October 2013 VA examination, the Veteran reported that sitting for an hour, bending, working out, or washing dishes produces back pain. She stated that she frequently takes pain medication and receives chiropractic treatment. She denied having any flare-ups that impact the function of her back. Examination revealed forward flexion to 60 degrees, extension to 5 degrees, right lateral flexion to 20 degrees, left lateral flexion to 15 degrees, and left and right lateral rotation to 25 degrees. Repetitive-use testing revealed further decreased forward flexion to 50 degrees but no change in the other planes. The examiner indicated that the Veteran does not have guarding or muscle spasm of the thoracolumbar spine, radiculopathy, or intervertebral disc syndrome. The examiner indicated that the Veteran's lumbar spine disability does not impact her ability to work. At the November 2019 hearing, the Veteran stated that she had a flare-up after the above examination and that during such flare-ups she either takes Motrin or just relaxes and refrains from doing her daily duties. She testified that she knows how far she can bend without pain and that she avoids bending beyond that point. At a February 2020 VA examination, the Veteran reported daily back pain with 2 to 3 flare-ups per month that last several hours and that are made worse with prolonged standing, sitting, or walking. She reported that she takes Motrin for the pain. Examination revealed forward flexion to 60 degrees, extension to 10 degrees, left and right lateral flexion to 15 degrees, and left and right lateral rotation to 20 degrees. Repetitive use testing revealed no additional loss of function or range of motion. The examiner estimated a loss 5 degrees of motion in each plane during a flare-up and indicated that the Veteran does not have guarding or muscle spasm of the thoracolumbar spine, radiculopathy, ankylosis of the spine, or intervertebral disc syndrome. The examiner stated that the Veteran's lumbar spine disability makes it difficult for her to stand, sit, or walk for a prolonged time. VA medical records show complaints of episodes of low back pain and findings of extension being limited at the end of range of motion. However, these reports contain no complete range of motion or other pertinent findings. As noted earlier, the Veteran appealed the Board's prior denial of her claim to the Court where she asserted for the first time that VA did not discuss the ameliorative effects of her pain medication on range of motion. The record shows that she has episodes of severe low back pain for which she takes pain medication. However, the record does not show that she takes pain medication on a daily basis. Given the above, the worst forward flexion finding of record is 50 degrees, and these range of motion results occurred after repetitive-use testing at the October 2013 examination. A careful review of both examination reports reveals no indication that the Veteran was experiencing a flare-up at either examination to have required her to take pain medication. In fact, she indicated that she had a flare-up after the October 2013 examination. Thus, the record indicates that she did not take any pain medication prior to either examination, thereby negating any ameliorative effects of such pain medication. In this regard, the Board notes that the February 2020 examiner estimated a loss of an additional 5 degrees of motion during a flare-up. As such, even if the Veteran had taken some pain medication prior to both examinations and, in line with the February 2020 examiner's estimate of additional loss, the Board were to concede an additional 5 degrees of loss, that would result in forward flexion to 45 degrees. Even that finding would still not be comparable to 30 degrees of forward flexion. Thus, the Board cannot find that the effects of any pain medication that the Veteran may have taken would have improved her forward flexion by 20 degrees, masking a true disability picture of forward flexion to only 30 degrees. Lastly, the February 2020 examiner also indicated that there was no ankylosis of the Veteran's spine. Thus, even considering functional loss due to pain and other factors, the Veteran's lumbar spine disability has not more nearly approximated forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The evidence of record simply does not support such a finding. The Board notes that the Veteran is competent to give evidence about observable symptoms such as low back pain. Layno v. Brown, 6 Vet. App. 465 (1994). However, the objective evidence fails to show that she has the necessary limitation of range of motion to warrant a higher 40 percent rating. Thus, a higher rating based on limitation of motion is not warranted. There is also no evidence that the Veteran's lumbar spine disability has resulted in intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks during any 12-month period. The Veteran did not report having incapacitating episodes at either examination, and the other medical evidence of record does not show any such episodes. Indeed, the February 2020 examination demonstrated no intervertebral disc syndrome of the Veteran's lumbar spine. Thus, a higher evaluation based on incapacitating episodes is not warranted. Accordingly, the Board concludes that a disability rating in excess of 20 percent for the service-connected degenerative arthritis of the lumbar spine is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In reaching this decision, the Board has also considered whether separate compensable ratings are warranted for lower extremity radiculopathy or other neurological abnormalities (e.g., bowel or bladder abnormalities) associated with the service-connected low back disability. However, no such abnormalities associated with this service-connected disability have been shown. Accordingly, separate compensable ratings based on such associated problems are not warranted. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. W. Kim, 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.