Citation Nr: 21063601 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 11-32 719 DATE: October 14, 2021 ORDER Entitlement to a disability rating for service-connected lumbosacral strain in excess of 10 percent, from October 19, 2009 to February 6, 2020, is denied. Entitlement to a disability rating for service-connected lumbosacral strain of 40 percent and no higher, effective February 6, 2020, is granted. Entitlement to a disability rating for service-connected cervical strain in excess of 10 percent, from October 19, 2009 to February 6, 2020, is denied. Entitlement to a disability rating for service-connected cervical strain of 30 percent, and no higher, effective February 6, 2020, is granted. FINDINGS OF FACT 1. From October 19, 2009 to February 6, 2020, the Veteran's service-connected lumbosacral strain has been manifested by forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 2. Since February 6, 2020, the probative evidence of record is at least in equipoise that the Veteran's service-connected lumbosacral strain is manifested by symptoms comparable to forward flexion of 30 degrees or less. 3. The most probative evidence of record does not suggest the Veteran's service-connected lumbosacral strain is not manifested by unfavorable ankylosis of the entire thoracolumbar spine or comparable symptoms. 4. From October 19, 2009 to February 6, 2020, the Veteran's service connected cervical strain was manifested by forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height 5. Since February 6, 2020, the probative evidence of record is at least in equipoise that the Veteran's service-connected cervical strain is manifested by symptoms comparable to forward flexion of the cervical spine 15 degrees or less but with no showing of either unfavorable ankylosis of the entire cervical spine or unfavorable ankylosis of the entire cervical spine. CONCLUSIONS OF LAW 1. From October 19, 2009 to February 6, 2020, the criteria for a rating in excess of 10 percent for lumbosacral strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. 2. Since February 6, 2020, the criteria for a rating of 40 percent for lumbosacral strain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. 3. The criteria for a rating in excess of 40 percent for lumbosacral strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. 4. From October 19, 2009 to February 6, 2020, the criteria for a rating in excess of 10 percent for cervical strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. 5. Since February 6, 2020, the criteria for a rating of 30 percent, but no higher, for cervical strain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has active service from October 2004 to October 2006. This case is before the Board of Veterans' Appeals (Board) from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2017 and August 2020, the Board remanded these matters to the RO for additional development, specifically an adequate medical examination that considered the factors set forth in Correia v. McDonald, 28 Vet. App. 158 (2016). New adequate examinations have been obtained. Finding there has been substantial compliance with the Board's remand directives in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998), the Board may proceed with appellate review. Increased Rating 1. Lumbosacral strain. 2. Cervical strain. The Veteran contends his lumbosacral strain and cervical strain have continued to worsen. He described constant pain with limited range of motion (12/09/2011 Form 9). The Veteran has also asserted entitlement to extraschedular consideration in light of daily severe flareups consisting of pain lasting thirty minutes, brought on by standing and lifting (9/13/2021 Appellate Brief). The Veteran's cervical and lumbosacral spine are both rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. The Veteran's cervical spine was initially rated at 10 percent, effective October 19, 2019. Representing a partial grant of the benefit sought on appeal, the Veteran's cervical spine disability rating has been increased to 20 percent, effective February 6, 2020; and, 30 percent, effective June 3, 2021. The Veteran's lumbosacral spine was initially rated at 10 percent, effective October 19, 2019. Representing a partial grant of the benefit sought on appeal, the Veteran's lumbosacral spine disability rating has been increased to 20 percent, effective February 6, 2020. The Veteran has not expressed satisfaction with the increased ratings; thus, the issues remain on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. The Veteran's back and neck disabilities are currently rated under Diagnostic Code 5237. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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. A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine; or, 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. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. In this regard the Board notes the Veteran has been assigned 20 percent disability rating for radiculopathy of the left and right lower extremities, effective June 3, 2021 (06/14/2021 Rating Decision - Narrative). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Disabilities of the thoracolumbar and cervical spine segments should be evaluated separately, except when there is unfavorable ankylosis of both segments. Then they will be rated as a single disability. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Veteran has been afforded VA examinations for his back and neck. The back examinations include a January 2010 VA examination (02/19/2010 VA Examination). At that time, his forward flexion endpoint was estimated at 88 degrees; extension, 28 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, left lateral rotation to 30 degrees. Combined range of motion was 236 degrees. The Veteran described constant pain in his low to mid-back, with daily flareups, with an 80 percent additional limitation of motion. His ability to stand was limited to 10 minutes and walking limited to a few yards. Use of assistive devices was not noted. No ankylosis, spasm, atrophy, pain with motion, tenderness, or weakness, was noted. In January 2016, the Veteran's active range of motion was assessed and measured as forward flexion to 90 degrees, extension, 25 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 30 degrees, left lateral rotation to 30 degrees (01/29/2016 C&P Exam) Additional functional loss was not noted upon repetition. Combined range of motion was over 120 degrees. Pain was exhibited with all movement, and although additional loss was not estimated, functional loss was noted. Although muscle spasm and guarding were not noted, disturbance of locomotion was indicated and described as less movement due to pain and adhesions, and increased pain with bending and lifting. Atrophy, ankylosis, IVDS, arthritis, and use of assistive devices were not found. A February 2020 back examination is of record (02/06/2020 C&P Exam). At that time, the Veteran's active range of motion was assessed and measured as forward flexion to 55 degrees, extension, 25 degrees, right lateral flexion to 25 degrees, left lateral flexion to 25 degrees, right lateral rotation to 30 degrees, left lateral rotation to 30 degrees. Combined range of motion was over 120 degrees. Additional functional loss was not noted upon repetition. Pain was exhibited at rest, non-movement and with movement in all ranges of motion. It was noted that pain is worse after 40 degrees of flexion and the Veteran is not able to bend fully. Estimated additional functional loss (to include during flareup) was described in terms of range of motion. Forward flexion endpoint was estimated at 35 degrees; extension, 20 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 20 degrees, left lateral rotation to 20 degrees. Pain and lack of endurance were noted to cause additional functional loss. Additional factors contributing to the Veteran's disability include less movement than normal due to ankylosis, adhesions, disturbance of locomotion, and interference with standing (02/06/2020 C&P Exam, pg. 4). No neurologic or radicular symptoms, IVDS, ankylosis or use of assistive devices was noted. Low back pain was noted with non-weightbearing and passive range of motion. Most recently, in June 2021, the Veteran underwent a VA examination of his back (06/03/2021 C&P Exam) The Veteran's active range of motion was assessed and measured as forward flexion to 60 degrees, extension, 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees, left lateral rotation to 20 degrees. Combined range of motion was 160 degrees. Pain was noted on all active and passive ranges of motion and with weight bearing. Passive range of motion was estimated to be the same as active. Additional functional loss was noted upon repetition. Forward flexion endpoint was estimated at 55 degrees; extension, 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 15 degrees, left lateral rotation to 15 degrees. Combined range of motion was 130 degrees. Pain and lack of endurance were found to cause functional loss. Estimated reduction in range of motion was forward flexion of 50 degrees; extension, 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 10 degrees, left lateral rotation to 10 degrees. Combined range of motion was 100 degrees. During flareups, an additional reduction to 45 degrees of flexion was estimated. Localized tenderness, muscle spasm, guarding, ankylosis, and IVDS were not noted. Radicular pain was noted, with no other neurological symptoms. The Veteran did not report use of any assistive devices. His back pain was described as causing the Veteran difficulty with heavy lifting and limited range of motion, and difficulty standing or sitting for long periods of time. After a review of the evidence of record, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for back disability at any time prior to February 6, 2020. Although the Veteran described increased pain and associated functional loss, the evidence does not suggest the degree of additional limitation would result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine not greater than 120 degrees. Additionally, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The February 6, 2020 VA examiner noted the Veteran had less movement than normal due to ankylosis and adhesions, disturbance of locomotion, and interference with standing. (Elsewhere the report indicated, however, that there was no ankylosis of the spine.) His forward flexion, accounting for pain, weakness, fatigability, or incoordination during flare-ups was reduced to 35 degrees. The Board finds the examiner's finding of reduced movement, taken in conjunction with the Veteran's description of worsening symptoms, including low back pain at non-weight baring and prolonged standing, approaches the symptomatology contemplated by the 40 percent disability rating. Accordingly, the Board finds an increase disability rating for his back disability is warranted. The Board has also considered the June 2021 VA examination. Unfavorable ankylosis of the entire thoracolumbar spine or symptoms comparable to ankylosis of the entire thoracolumbar spine was not described. The record does not suggest a disability rating in excess of 40 percent is warranted. Consideration has been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, however the Veteran does not have IVDS. The evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Board has also considered the rating criteria for IVDS, Diagnostic Code 5243, effective February 7, 2021. The evidence does not suggest disc herniation with compression or irritation of the adjacent nerve root. Accordingly, rating pursuant to DC 5243 is not warranted here. Regarding neurological impairment, the Veteran has already been granted service connection for right and left lower extremity radiculopathy associated with lumbosacral strain. He is rated pursuant to diagnostic code 8520 at a rating of 20 percent effective June 2021 (06/14/2021 Rating Decision - Codesheet). The lay and medical evidence of record is against a finding that the Veteran had any other neurological abnormality associated with his spine disability prior to that date. The record does not suggest moderately severe symptoms warranting a rating in excess of 20 percent for radicular symptoms of the lower extremities at any time during the appeal period. For example, reflexes were normal at the most recent VA examination, which is deemed representative of symptoms throughout the appeal period. Lower extremity sensory testing results showed decreased, but not absent, sensation. Straight leg raise was positive but motor strength was normal. All radicular symptoms were characterized by the examiner as being mild in degree. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for back disability prior to February 6, 2020. The evidence is at least in equipoise that the Veteran's back symptoms are comparable to those warranting a disability rating of 40 percent, and no higher, thereafter. With regard to the Veteran's cervical spine, he was afforded a VA examination for in January 2010. Cervical spine flexion measured 45 degrees and combined range of motion, 325 degrees. He described constant neck pain with flareups twice a week, resulting in additional limitation of motion. Standing was described as limited to 10 minutes, and his ability to walk, limited to a few yards. No ankylosis, spasm, atrophy, pain with motion, tenderness, or weakness, was noted. The Veteran has been afforded a January 2016 examination for his cervical spine (01/29/2016 C&P Exam). His cervical forward flexion was measured at 40 degrees, with a combined cervical range of motion of 250 degrees. Pain was noted on examination and with all range of motion and was described as causing functional loss. Evidence of tenderness or pain on palpation was noted. Although estimated measurements of additional loss of range of motion due to pain during flare ups were not provided, the examiner described less movement due to pain and adhesions and increased pain with overhead work. Muscle atrophy, ankylosis, radiculopathy, guarding, and muscle spasm were not found. The use of assistive devises was not noted. In February 2020, the Veteran was afforded an examination of his cervical spine (02/06/2020 C&P Exam). His cervical forward flexion was measured as 40 degrees, with a combined cervical range of motion of 222 degrees. Pain and lack of endurance resulted in reduction of forward flexion to 30 degrees and combined range of motion 175 degrees. Pain was noted on rest and non-movement, as well as in all ranges of motion. The Veteran reported flare ups, approximately every six weeks, that last for about one day. Muscle spasm, atrophy, radiculopathy, guarding, and use of assistive devises were not noted. Less movement than normal was noted due to "ankylosis, adhesions, etc." and interference with looking up, down, or around. The Veteran was able to perform repetitive use testing with at least three repetitions, without additional loss of function or range of motion after three repetitions. No radicular pain, neurologic or radicular symptoms, IVDS or guarding was documented. The Veteran was assessed as unable to do physically demanding work or work that requires extended periods of standing. The Veteran has neck pain when non-weightbearing with passive range of motion (02/06/2020 C&P Exam). In June 2021, the Veteran underwent a VA examination of his neck (06/03/2021 C&P Exam). On active and passive range of motion, cervical forward flexion of 30 degrees, with a combined cervical range of motion of 220 degrees, was noted. Pain was noted on all ranges of motion and weight bearing. Additional loss of range of motion was noted with repetition, with forward flexion endpoint at 25 degrees, and combined range of motion of 190 degrees. Additional functional loss due to pain and lack of endurance resulted in further reduction of range of motion with forward flexion estimated as 20 degrees and combined range of motion of 160 degrees. Muscle atrophy, ankylosis, radiculopathy, guarding, and muscle spasm assistive devises The Veteran described severe flare-ups of the neck occurring daily. The neck flare-ups last at least one hour. They were precipitated by standing and lifting and alleviated with rest. The Veteran's range of motion during a flare up was forward flexion of 15 degrees and combined range of motion of 130. Localized tenderness, guarding and muscle spasm was not noted. Radicular symptoms and IVDS were not noted. The Veteran did not report use of assistive devices. After a review of the record, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for a neck disability at any time prior to February 6, 2020. During that time period, the evidence does not suggest limitation of forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees and the combined range of motion of the cervical spine exceeded 170 degrees. Regarding neurological impairment, the lay and medical evidence of record does not suggest the Veteran has any radicular symptoms or neurological abnormality associated with his cervical spine disability. As such, separate ratings for either radicular symptoms or neurological abnormalities associated with his cervical spine disability are not warranted. The Board has considered the Veteran's assertion of entitlement to extraschedular consideration for his back and neck disabilities (9/13/2021 Appellate Brief). After a review of the record and the Veteran's symptoms, the Board finds the schedular criteria adequately addresses the Veteran's symptomatology. Accordingly, the Veteran's back and neck symptoms do not warrant extraschedular consideration. In sum, the Board finds a disability rating in excess of 10 percent, from October 19, 2009 to February 6, 2020, for the Veteran's cervical spine is not warranted, and a disability rating for service-connected cervical strain of 30 percent, and no higher, effective February 6, 2020, is warranted, based on the range of motion findings considering additional functional limitation, to include during flare-ups. A disability rating for service-connected lumbosacral strain in excess of 10 percent, from October 19, 2009 to February 6, 2020, is not warranted. A disability rating for service-connected lumbosacral strain of 40 percent and no higher, effective February 6, 2020, is warranted. ERIC S. LEBOFF Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. A. Myers 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.