Citation Nr: 21067631 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 16-43 280 DATE: November 4, 2021 ORDER Entitlement to an initial rating greater than 10 percent prior to June 14, 2012, greater than 20 percent prior to July 27, 2021, and greater than 40 percent thereafter, for a lumbosacral spine disability is denied. FINDINGS OF FACT 1. The record evidence shows that, prior to June 14, 2012, the Veteran's service-connected lumbosacral spine disability is manifested by, at worst, complaints of low back pain. 2. The record evidence shows that, between June 14, 2012, and July 27, 2021, the Veteran's service-connected lumbosacral spine disability is manifested by, at worst, forward flexion of the lumbosacral spine to 40 degrees. 3. The record evidence shows that, effective July 27, 2021, the Veteran's service-connected lumbosacral spine disability is manifested by, at worst, forward flexion of the lumbosacral spine to 5 degrees with repeated use over time due to pain. CONCLUSION OF LAW The criteria for an initial rating greater than 10 percent prior to June 14, 2012, greater than 20 percent prior to July 27, 2021, and greater than 40 percent thereafter, for a lumbosacral spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5237, 5242 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the U.S. Navy from September 1995 to July 1996. He also had a period of active duty for training (ACDUTRA) in the U.S. Army from February to May 1989 and additional unverified U.S. Army National Guard (ANG) service. This appeal has a long procedural history. It comes before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which granted a claim of service connection for a lumbosacral spine disability (which was characterized as degenerative disc disease of the lumbosacral spine) and assigned a 10 percent rating effective November 25, 2003, and a 20 percent rating effective June 14, 2012. A videoconference Board hearing was held in March 2019 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. The Veteran appointed his current service representative to represent him before VA by filing a completed VA Form 21-22 at the RO in August 2020. The Board acknowledges that the rating criteria for evaluating musculoskeletal disabilities were revised effective February 7, 2021. These revisions did not make substantive changes to the rating criteria for evaluating disabilities of the spine. In June 2021, the Board remanded the currently appealed claim to the RO for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. After finding an October 2020 VA examination inadequate for VA adjudication purposes, the Board directed the RO to schedule the Veteran for an updated examination to determine the nature and severity of his service-connected lumbosacral spine disability. This examination occurred in July 2021. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In an August 2021 rating decision, the RO assigned a higher initial 40 percent rating effective July 27, 2021, for the Veteran's service-connected lumbosacral spine disability. Having reviewed the record evidence, the Board finds that the issue on appeal should be characterized as stated above. The Board acknowledges that certain of the Veteran's medical records from his ANG service and from U.S. Army medical facilities in Fort Carson, Kentucky, are not available for review. In cases where the Veteran's service treatment records (or other relevant records) are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his or her case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). VA also must provide an explanation to the appellant regarding VA's inability to obtain his or her service treatment records. Dixon v. Derwinski, 3 Vet. App. 261 (1992). The Court has held that VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999); see also McCormick v. Gober, 14 Vet. App. 39 (2000). Here, the Veteran was advised by correspondence from VA dated in 2010 and in 2014 that these records were unavailable and asked to provide any records in his possession. There is no record of a response. Thus, the Board finds that it is reasonably certain that these records do not exist and further efforts to attempt to obtain them would be futile. The Board finds that the preponderance of the evidence is against granting the Veteran's claim of entitlement to an initial rating greater than 10 percent prior to June 14, 2012, greater than 20 percent prior to July 27, 2021, and greater than 40 percent thereafter, for a lumbosacral spine disability. The Veteran essentially contends that his service-connected lumbosacral spine disability is more disabling than currently (and initially) evaluated during each of the time periods at issue in this appeal. The record evidence does not support his assertions at any time during the appeal period. It shows instead that, prior to June 14, 2012, this disability is manifested by, at worst, complaints of low back pain. For example, the available service treatment records show that his lumbosacral spine was normal clinically at his U.S. Navy enlistment physical examination in September 1995 and he denied all relevant pre-service medical history. At his U.S. Navy separation physical examination in June 1996, prior to his separation from service in July 1996, clinical evaluation was within normal limits and he denied any relevant in-service medical history. The post-service evidence also does not support granting an initial rating greater than 10 percent prior to June 14, 2012, greater than 20 percent prior to July 27, 2021, and greater than 40 percent thereafter, for a lumbosacral spine disability. It shows instead that, prior to June 14, 2012, this disability is manifested by, at worst, complaints of low back pain. For example, private x-rays of the Veteran's lumbosacral spine taken in February 1999 showed a small accessory joint on the left side of L5-S1. On VA spine examination in April 2009, the Veteran's complaints included "intermittent problems with his back" since active service and constant low back pain which he rated as 7/10 on a pain scale (with 10/10 being the worst imaginable pain). He also reported some recent urinary incontinence but denied any incapacitating episodes of low back pain in the previous 12 months. The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. A history of degenerative disc disease of the lumbosacral spine was noted. He wore a back brace "about half the time" and had been treated with epidural steroid injections, multiple nerve blocks, and over-the-counter medication. Physical examination showed that he walked from the waiting room to the examination room without difficulty and moved around the examination room without difficulty, a level pelvis without list or scoliosis, no muscle spasm or tenderness, a normal gait, negative straight leg raising, and normal reflexes, motor strength, and sensation. Range of motion testing showed repeated flexion to 90 degrees "without apparent increased pain." X-rays showed sacralization of L5 and mild narrowing of disc space at L5-S1. The impression was degenerative disc disease of the lumbar spine. Contrary to the Veteran's lay assertions and Board hearing testimony, the record evidence shows that, prior to June 14, 2012, his service-connected lumbosacral spine disability is manifested by, at worst, complaints of low back pain. VA examination in April 2009 documented his complaints of constant low back pain and medical history of degenerative disc disease of the lumbosacral spine. Physical examination essentially was within normal limits and he had a full, non-painful range of motion on forward flexion of the lumbosacral spine. His complaints of low back pain are compensated adequately by the 10 percent rating currently (and initially) assigned under DC 5237. See 38 C.F.R. § 4.71a, DC 5237. There is no indication that, prior to June 14, 2012, forward flexion of the lumbosacral spine was limited to 60 degrees or less or there was muscle spasm or guarding resulting in an abnormal gait or spinal contour as is required for a higher initial 20 percent rating under DC 5237. Id. The April 2009 VA examiner specifically found no muscle spasm present in the lumbosacral spine. The Veteran otherwise has not identified or submitted any evidence demonstrating his entitlement to an initial rating greater than 10 percent prior to June 14, 2012, for his service-connected lumbosacral spine disability. In summary, the Board finds that the criteria for an initial rating greater than 10 percent prior to June 14, 2012, for a lumbosacral spine disability have not been met. The Veteran also is not entitled to an initial rating greater than 20 percent between June 14, 2012, and July 27, 2021, for his service-connected lumbosacral spine disability. The Board acknowledges that the symptomatology attributable to this disability worsened on VA back (thoracolumbar spine) conditions Disability Benefits Questionnaire (DBQ) on June 14, 2012, and supported the assignment of a higher initial 20 percent rating effective on this date under DC 5237. Id. At this examination, the Veteran's complaints included near continuous low back pain which he rated as 6/10 on a pain scale with flare-ups which he rated as 10/10 (or the worst imaginable pain) occurring 3 times a week and lasting for 2 hours at a time. Range of motion testing showed forward flexion to 50 degrees with objective evidence of painful motion beginning at 50 degrees and no additional limitation of motion on repetitive testing. Physical examination of the lumbosacral spine showed less movement than normal, pain on movement, tenderness over the spinous process of the upper and lower back, no guarding or muscle spasm, 5/5 muscle strength, no muscle atrophy, normal reflexes, normal sensation throughout except for decreased sensation in the right lower leg/ankle and right foot/toes, positive straight leg raising bilaterally, and no other neurologic abnormalities or intervertebral disc syndrome. The Veteran regularly used a walker. X-rays showed no arthritis. The diagnosis was degenerative disc disease of the thoracic/lumbar spine. On VA back (thoracolumbar spine) conditions DBQ in March 2016, the Veteran's complaints included daily pain in the mid- to low back. The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. A history of degenerative changes to the lumbosacral spine was noted. The Veteran reported missing work on 3-4 different days due to severe back pain. Range of motion testing of the lumbosacral spine showed forward flexion to 40 degrees which diminished performance "during routine movements." There was no additional limitation of motion on repetitive testing. Physical examination of the lumbosacral spine showed pain with weight bearing, tenderness to palpation at the midline overlying the T2 and T4 levels, guarding and localized tenderness resulting in an abnormal gait or spinal contour, less movement than normal, pain with movement, slowed movements, 5/5 muscle strength, no muscle atrophy, normal reflexes, normal sensation throughout except for decreased sensation in the lower legs/ankles, negative straight leg raising bilaterally, and no ankylosis, neurologic abnormalities, or intervertebral disc syndrome. The Veteran did not use any assistive devices for ambulation. X-rays showed arthritis. He avoided bending over or lifting more than 50 pounds. He was unable to walk more than 1 2 blocks and standing was limited to 20 minutes. The diagnosis was degenerative disc disease of the lumbar spine. The Veteran's voluminous VA outpatient treatment records dated during this time period show ongoing complaints of low back pain which were treated with routine epidural steroid injections and nerve blocks. The Veteran testified at his March 2019 Board hearing that he received only very minor relief lasting a few hours following a nerve block. He also testified that his low back pain averaged 7-7.5/10 on a typical day. His further testified that his low back pain was constant. See Board hearing transcript dated March 25, 2019, at pp. 7. As noted in the Introduction, the Board previously found an October 2020 VA back (thoracolumbar spine) conditions DBQ to be inadequate for VA adjudication purposes in the June 2021 remand. This examination was not reviewed or relied upon in adjudicating the currently appealed claim. The record evidence demonstrates that the symptomatology attributable to the Veteran's service-connected lumbosacral spine disability worsened on VA examination on June 14, 2012. This examination showed that forward flexion was limited to 40 degrees. It also showed that guarding was present and resulted in an abnormal gait or spinal contour. These physical examination findings supported the assignment of a higher initial 20 percent rating effective June 14, 2012, for the service-connected lumbosacral spine disability under DC 5237. Id. Contrary to his lay assertions and hearing testimony, there is no indication that, between June 14, 2012, and July 27, 2021, the Veteran experienced forward flexion limited to 30 degrees or less or ankylosis (whether favorable or unfavorable) of the thoracolumbar spine or the entire spine as is required for an initial rating greater than 20 percent under DC 5237. Id. The June 14, 2012, VA examiner specifically found no ankylosis present on physical examination of the Veteran's lumbosacral spine. The Board does not doubt that the Veteran finds the presence of constant daily low back pain to be debilitating. Nevertheless, he has not identified or submitted any evidence demonstrating his entitlement to an initial rating greater than 20 percent between June 14, 2012, and July 27, 2021, for his service-connected lumbosacral spine disability. Thus, the Board finds that the criteria for an initial rating greater than 20 percent between June 14, 2012, and July 27, 2021, for a lumbosacral spine disability have not been met. The Veteran finally is not entitled to an initial rating greater than 40 percent effective July 27, 2021, for his service-connected lumbosacral spine disability. The Board acknowledges that the symptomatology attributable to this disability worsened on VA back (thoracolumbar spine) conditions DBQ conducted on this date. At this examination, the Veteran's complaints included constant debilitating low back pain which he rated as 6/10 on a pain scale "with maximum pain 9.5/10." The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. The Veteran reported increased low back pain in sitting, standing, and walking for prolonged periods of time. He constantly changed positions and moved "in order to try and relieve the pain." He was unable to bend, lift, or carry objects due to his low back pain. His treatment included epidurals which provided only brief relief of his symptoms for a few days. He experienced daily flare-ups of low back pain which he characterized as "intense aching and pulling in [the] middle of [his] back" and lasting from a few minutes to hours. Range of motion testing of the lumbosacral spine showed forward flexion to 10 degrees with pain. Passive range of motion testing could not be performed because it was contraindicated medically. There was no additional limitation of motion on repetitive testing. The VA examiner estimated that forward flexion was to 5 degrees with repeated use over time due to pain. Physical examination showed pain on active motion, tenderness to palpation in the lumbar paraspinal muscles, localized tenderness and guarding not resulting in abnormal gait or spinal contour, 5/5 muscle strength, normal reflexes, normal sensation throughout except for decreased sensation in the lower legs/ankles and feet/toes, negative straight leg raising bilaterally, and no ankylosis, other neurologic abnormalities, or intervertebral disc syndrome. The Veteran constantly used a cane. He was limited in sitting, standing, or walking for prolonged periods of time, lifting or carrying heavy objects, and pushing, pulling, or reaching for objects. He needed frequent breaks to reposition himself or rest. The diagnoses included degenerative arthritis. The record evidence demonstrates that the symptomatology attributable to the Veteran's service-connected lumbosacral spine disability worsened on VA examination on July 27, 2021, when forward flexion was limited to 10 degrees on range of motion testing and to 5 degrees on repeated use over time due to pain. These physical examination findings supported the assignment of a higher initial 40 percent rating effective July 27, 2021, for the service-connected lumbosacral spine disability under DC 5242. See 38 C.F.R. § 4.71a, DC 5242. (The Board notes parenthetically that the RO changed the DC for evaluating this disability in the most recent rating decision issued in August 2021 which assigned the higher initial 40 percent rating.) Contrary to his lay assertions and hearing testimony, there is no indication that the Veteran experienced unfavorable ankylosis of the entire thoracolumbar spine or the entire spine (i.e., a 50 or 100 percent rating under DC 5242) as is required for an initial rating greater than 40 percent at any time since July 27, 2021. Id. The July 27, 2021, VA examiner specifically found no ankylosis present on physical examination of the Veteran's lumbosacral spine. The Board again does not doubt that the Veteran finds the presence of constant daily low back pain to be debilitating. Nevertheless, he has not identified or submitted any evidence demonstrating his entitlement to an initial rating greater than 40 percent effective July 27, 2021, for his service-connected lumbosacral spine disability. Thus, the Board finds that the criteria for an initial rating greater than 40 percent effective July 27, 2021, for a lumbosacral spine disability have not been met. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.