Citation Nr: 21066828 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 11-00 310A DATE: November 2, 2021 ORDER Entitlement to a rating higher than 10 percent for a low back disability prior to December 30, 2015, and higher than 20 percent thereafter is denied. FINDING OF FACT 1. Prior to December 30, 2015, the Veteran's back disability did not more closely approximate 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; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; or intervertebral disc syndrome (IVDS) with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. 2. From December 30, 2015, the Veteran's back disability did not more closely approximate 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; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; or intervertebral disc syndrome (IVDS) with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. CONCLUSION OF LAW The criteria for a rating higher than 10 percent prior to December 30, 2015 and higher than 20 percent thereafter for a back disability are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1972 to September 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the June 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2017, the Veteran testified before a Veterans Law Judge who has since retired; a transcript of the hearing is associated with the record. In July 2021, the Board sent the Veteran a letter notifying him that the Veterans Law Judge that held his hearing has retired and that he has the option to request another hearing before the Judge who will adjudicate his claim. The Veteran responded and declined another Board hearing. The Board remanded the claim in July 2017, April 2019, and September 2020. The matter has been properly returned to the Board for appellate consideration. The Veteran's back disability is rated pursuant to DC 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 or Injuries of the Spine, the diagnostic code criteria pertinent to lumbar spine disabilities provides that a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, a 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. Id. A 20 percent is assigned for forward flexion greater than 30 degrees but not greater than 60 degrees, or for the combined ROM that is not greater than 120 degrees, or for a 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 rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine. Ankylosis is defined, for VA compensation purposes, as a condition in which all or part of the spine is fixed in flexion or extension. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (5). When rating musculoskeletal disabilities on the basis of limited motion of a joint, VA must consider functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered only in conjunction with diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Where functional loss is alleged due to pain upon motion, the function of the musculoskeletal system and movements of joints must still be analyzed. DeLuca v. Brown, 8 Vet. App. 202 (1995). A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80 (1997). Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran is currently in receipt of a 10 percent disability rating prior to December 30, 2015 and a 20 percent disability rating thereafter. The Veteran contends that he is entitled to increased disability ratings for his low back strain. Initially, the Board notes that the Veteran was granted separate disability ratings for radiculopathy of his bilateral upper extremities and right lower extremity radiculopathy associated with his low back strain in October 2018 and October 2020 rating decisions. The RO indicated that these were full grants for the benefits sought on appeal, and the Veteran did not appeal the ratings or effective dates assigned. Therefore, these issues are not currently on appeal, and the Board will not consider whether higher disability ratings are warranted for his right lower extremity radiculopathy. The evidence of record does not support a rating higher than 10 percent prior to December 30, 2015 and higher than 20 percent thereafter, for the Veteran's back disability. On February 2021 VA examination, the Veteran reported back pain. On active range of motion testing, forward flexion was to 65 degrees, with painful motion beginning at 65 degrees; extension was to 15 degrees, with painful motion beginning at 15 degrees; right lateral flexion was to 15 degrees, with painful motion beginning at 15 degrees; left lateral flexion was to 20 degrees, with painful motion beginning at 20 degrees; right and left lateral rotation was to 15 degrees, with painful motion beginning at 15 degrees. Passive range of motion values were the same as active range of motion. The Veteran was able to perform repetitive use testing with 3 repetitions with no additional loss of range of motion. Although the Veteran was not examined immediately after repeated use over time, the examiner noted that there was no additional functional loss with repeated use over time. Flare-ups were not reported. The examiner noted the Veteran had localized tenderness or pain to palpation described as sharp pain and muscle spasms; however, they did not result in abnormal gait or spinal contour. Although the October 2017 VA examination was not adequate because the examiner did not provide an opinion on flare-ups consistent with the holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Board reviewed the provided range of motion testing to consider whether the results warranted a higher rating. During the initial ROM testing, the Veteran's forward flexion ended at 70 degrees. Extension ended at 15 degrees. Right lateral flexion ended at 15 degrees. Left lateral flexion ended at 25 degrees. Right lateral rotation ended at 20 degrees. Left lateral rotation ended at 20 degrees. There was no additional loss of function or ROM after three repetitions. As reflected in the medical evidence, to include the February 2021 VA examination report, at worst, the Veteran's forward flexion in his lower back has been shown at no greater than 60 degrees and his combined ROM has been shown at greater than 120 degrees from December 30, 2015. As such, the Veteran's circumstances squarely meet the rating criteria at 20 percent, but not higher. The Board has considered the Veteran's lay statements. While the Veteran is competent to report his symptoms, whether a disability meets the schedular criteria for the assignment of an evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence. Here, although the Veteran may believe that he meets the criteria for a higher rating, the medical findings show that he does not meet the schedular requirements for a compensable rating, as explained and discussed above. The Board has concluded that the medical evidence, prepared by skilled professionals, is more probative regarding the Veteran's degree of disability. (Continued on the next page) As the preponderance of evidence is against the claim, the benefit of the doubt rule is not for application and the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hemphill 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.