Citation Nr: 21068590 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 16-63 667 DATE: November 10, 2021 ORDER A rating in excess of 10 percent for the service-connected chronic low back strain is denied. FINDING OF FACT At no time during the appeal period has the Veteran's service-connected chronic low back strain resulted in forward flexion of the thoracolumbar spine to less than 85 degrees; a combined range of motion of the thoracolumbar spine less than 230 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; bedrest to treat incapacitating episodes of IVDS has not been prescribed. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for the service-connected chronic low back strain have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 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 May 1984 to November 1987. During the current appeal, and specifically in August 2017, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) who has since retired. A transcript of the hearing has been associated with the Veteran's claims file. In September 2021, the Veteran was notified of her right to request another hearing, but she declined. This current matter was previously remanded by the Board of Veterans Appeals (Board) in March 2019 for further evidentiary development. Increased Rating Chronic Low Back Strain Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 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. Reasonable doubt as to the degree of disability is resolved in the Veteran's favor. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran seeks a higher disability rating for her chronic low back strain, which is currently rated at 10 percent under DC 5237. Spinal disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the current Formula for Rating IVDS Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, DC 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS requiring treatment, including bedrest, prescribed by a physician. Id. at Note (1). The evidence of record does not show that the Veteran has been prescribed bedrest to treat incapacitating episodes of IVDS at any time during the period on appeal, nor has she argued as such. As the prescription of bedrest for IVDS is a foundational requirement of a rating under this section of the rating schedule, the absence of any prescribed bedrest precludes a rating from being assigned under it. Thus, in the case at hand, a rating based on IVDS is not appropriate and the Veteran's lumbar spine disability will be evaluated under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; when the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, when there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or when there is a vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, DCs 5235-5243. A 20 percent rating requires forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. And finally, a 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. Id. Note 6 of the rating formula instructs VA to separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, Note 6. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V. Also, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. As an initial matter, the Board acknowledges that the Veteran was afforded a VA examination in June 2015 to assess the severity of her chronic low back strain. However, the Board finds that the June 2015 VA examination is inadequate for rating purposes. Thus, it will not be discussed further in this decision. At the August 2017 hearing, the Veteran testified that she has experienced intermittent back pain since she injured her low back in service. She further testified that her low back pain causes difficulties with walking and bending over, and that at times her back feels like it is going to give out. The Veteran was afforded a VA examination in October 2019. She reported that prolonged walking, standing, sitting, and bending over cause her low back pain and she further reported experiencing flare ups four to five times a week, which cause an increase in her low back pain. Her active range of motion measurements were as follows: forward flexion to 90 degrees; extension to 25 degrees; right lateral flexion to 30 degrees; left lateral flexion to 25 degrees; right lateral rotation to 30 degrees; and left lateral rotation to 30 degrees. Her combined range of motion of her thoracolumbar spine was 230 degrees. Pain was noted with forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation but her abnormal range of motion was not found to contribute to functional loss. There was no evidence of pain on passive range of motion or with weight bearing, but there was objective evidence of localized tenderness or pain on palpation of right lumbar musculature. The Veteran was able to perform repetitive use testing of at least 3 repetitions and additional loss of function or range of motion due to pain was noted. Her range of motion measurements after 3 repetitions were as follows: forward flexion to 85 degrees; extension to 25 degrees; right lateral flexion to 30 degrees; left lateral flexion to 30 degrees; right lateral rotation to 30 degrees; and left lateral rotation to 30 degrees. Her combined range of motion of her thoracolumbar spine after 3 repetitions was 230 degrees. The Veteran was not examined immediately after repetitive use over time or during a flare up, and the examiner indicated that the examination is neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time or during flare ups. There was no evidence to suggest pain, fatigability, weakness, lack of endurance, or incoordination significantly limits her functional ability with repeated use over time or during flare ups. The Veteran denied experiencing guarding and muscle spasm and no other factors were found to contribute to her lumbar spine disability. Muscle strength testing was all within normal limits except for left ankle dorsiflexion and left great toe extension, which was recorded as active movement against some resistance for both. There was no evidence of muscle atrophy and her reflexes were normal. Her sensory examination was normal except for decreased sensation to light touch in her left foot and toes. Her straight leg raising test was negative on both sides. There was no ankylosis of the spine found and no other neurological abnormalities related to her lumbar spine disability were noted. The Veteran does not have IVDS of the thoracolumbar spine and no other pertinent physical findings were noted. She does require use of a cane and an extension gripper to pick things up on a regular basis and she occasionally uses a walker. The Veteran did report experiencing signs and symptoms of radiculopathy in her left lower extremity. However, the Board notes that the Veteran has previously sought service connection for her radiculopathy symptoms secondary to her chronic low back pain, and in December 2012, a VA examiner stated that she could not determine if the Veteran's radiculopathy symptoms were related to her chronic low back strain without resorting to mere speculation. There is no other evidence in the record that connects the Veteran's radiculopathy symptoms to her chronic low back strain. A separate compensable rating such symptoms is not warranted. There are no other medical treatment records associated with the claims file that indicate that the Veteran's symptoms of her chronic low back strain were more severe than those exhibited at the October 2019 VA examination. Accordingly, a rating in excess of 10 percent for the Veteran's service-connected chronic low back strain is not warranted at any time throughout the appeal period. As noted above, at no time during the appeal period has her chronic low back strain resulted in forward flexion of the thoracolumbar spine to less than 85 degrees; a combined range of motion of the thoracolumbar spine less than 230 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. Accordingly, the Board finds that the criteria for an evaluation rating in excess of 10 percent under DC 5237 have not been met at any time during the period on appeal. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Benson, 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.