Citation Nr: 21069426 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 13-18 592 DATE: November 18, 2021 ORDER Entitlement to a rating in excess of 30 percent for low back strain with degenerative changes, disc space narrowing, and L1 wedge deformity (hereinafter back disability) is denied. FINDING OF FACT The Veteran's back disability is not shown to have forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 30 percent for a back disability 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. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1991 to July 1992. This matter is before the Board of Veterans' Appeal (Board) on appeal of a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2013, the Veteran testified before a Veterans Law Judge (VLJ) who is no longer with the Board. A transcript of the Board hearing has been associated with the record. By way of procedural history, this matter has previously been before the Board in August 2017, August 2018, October 2020, and May 2021. In the most recent Board decision, the Board issued a remand for further development of the issue. Specifically, the Board requested that an addendum opinion be completed in connection with the Veteran's back disability. The addendum has been obtained and the issue is now before the Board. Entitlement to a rating in excess of 30 percent for a back disability. The Veteran contends that he is entitled to a higher disability rating for his service-connected back disability. The Veteran's back disability is currently rated as 30 percent disabling under Diagnostic Code 5237. Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes the Veteran has been in receipt of a 30 percent rating for his back disability from August 17, 1993. Under 38 C.F.R. § 3.951, a disability which has been continuously rated at or above any evaluation for 20 or more years cannot be reduced except upon a showing that such a rating was based on fraud. The evaluation of a 30 percent rating for the Veteran's back disability is therefore protected. Furthermore, the Veteran's back disability was originally evaluated under Diagnostic Code 5292 and assigned a 30 percent rating based on moderate limitation of motion of the lumbar spine with demonstrable deformity of a vertebral body. Effective from September 26, 2003, Diagnostic Code 5292 was eliminated and replaced with a new Diagnostic Code of 5237 for lumbar strain. Since September 26, 2003, the diagnostic codes pertaining to the back have changed. Under DC 5237, a 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. As of February 7, 2021, new musculoskeletal ratings went into effect. There was no change to DC 5237. The Board has considered the Veteran's claim in light of all of the potentially relevant regulations and has found the Veteran's back disability does not warrant a higher evaluation. In October 2020, the Veteran underwent a VA examination for his back disability. Initial range of motion testing showed forward flexion to 60 degrees. Functional impairment was reported from prolonged sitting, prolonged walking, prolonged standing, and pain. There was no evidence of pain with weight bearing and no additional loss of function or range of motion after three repetitions. Pain and fatigue limited functional ability with repeated use over a period of time with the range of motion for forward flexion measured to 55 degrees. Furthermore, pain, fatigue, and weakness were noted to limit functional ability with flare-ups showing forward flexion limited to 50 degrees. No ankylosis was noted for the spine. Per the May 2021 Board remand directives, an addendum opinion was obtained to address the functional loss, in the form of degrees, as a result of pain on motion. The examiner noted there was no change in the range of movement from pain. Active range of motion was tested and showed forward flexion to 70 degrees with pain. The Veteran was noted to have IVDS but did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. Lastly, the examiner noted that the Veteran's back disability did not impact his ability to perform in any type of occupational task. The Board finds that the preponderance of the evidence is against a rating in excess of 30 percent for his back disability. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, pain during flare-ups, from prolonged sitting, prolonged walking, and prolonged standing. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. In fact, the Veteran's back disability showed improvement upon examination. It is important for the Veteran to understand that we each examination and remand, the Board is provided more evidence against this claim. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, 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. Regarding neurological impairment, the Veteran has already been granted service connection for bilateral lower extremity radiculopathy and assigned a 20 percent disability rating. Moreover, the May 2021 Board decision denied entitlement to a rating more than 20 percent for the Veteran's bilateral lower extremity radiculopathy. This does not suggest that the Veteran is not having problems: A Veteran with these disability evaluations will cause the Veteran many problems. The only question is the degree based on the criteria and the medical evidence. Based on the foregoing, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 30 percent for a back disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura Cochran, 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.