Citation Nr: 21070678 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 16-33 001 DATE: November 24, 2021 ORDER Entitlement to a rating in excess of 20 percent for a low back disability is denied. FINDING OF FACT Any no time under consideration is the Veteran's low back disability shown to have been manifested by forward flexion of the thoracolumbar spine limited to 30 degrees or less or by ankylosis of the thoracolumbar spine. CONCLUSION OF LAW A rating in excess of 20 percent is not warranted for the Veteran's low back disability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (Codes) 5003, 5010, 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from February 4, 1980 to April 24, 1980, from February 14, 2003 to February 23, 2004, from January 3, 2007 to April 22, 2008, and from July 5, 2009 to August 28, 2010 and had additional Reserve service. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision. In March 2020, a videoconference hearing was held before the undersigned, and an interpreter, V.H., was in attendance; a transcript is in the record. The case was remanded in March 2020. [A September 2021 Decision Review Officer (DRO) decision granted service connection for right and left lower extremity radiculopathy, and assigned ratings and effectives dates for the awards, resolving those matters. ] Entitlement to a rating in excess of 20 percent for a low back disability is denied. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Pertinent general policy considerations include: interpreting examination reports in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When evaluating a service-connected disability based on limitation of motion, the Board must take into consideration functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In DeLuca, the Court held that a diagnostic code based on limitation of motion does not subsume 38 C.F.R. §§ 4.40 and 4.45 and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups. Id. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Nonetheless, a rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" as defined in 38 C.F.R. § 4.40 , before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran filed the instant claim for increase on December 30, 2014. Consequently, the evaluation period begins December 30, 2013, one year prior. The Veteran's low back disability is rated under 38 C.F.R. § 4.71a, Code 5242 (for lumbar spondylosis) and the General Rating Formula for Diseases and Injuries of the Spine (General Formula). As noted above, the Veteran's low back disability is currently rated under Diagnostic Code 5242. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, the rating criteria for this diagnostic code was not changed. The intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The General Formula provides for: a 40 percent rating when forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar 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. 38 C.F.R. § 4.71a, Codes 5242-5235. Pertinent Notes following include: Note (1) any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. A June 2014 VA treatment record notes that the Veteran reported low back pain of 5/10 intensity that has been worsening since 2013. A November 2014 VA treatment record notes that the Veteran reported low back pain and that he was directed to continue treatment with medication and use a lumbar stretch corset when needed. A March 2015 VA treatment record notes that the Veteran walked without assistive devices and reported generalized pain of 8/10, with his back being the most affected area. He related that he had difficulty performing heavy tasks at home due to back pain. On examination, it was noted that the Veteran had functional active range of motion (ROM) and muscle strength in his upper and lower extremities, could perform self-care activities with the use of assistive devices, and drove his own car. On March 2015 VA back examination, lumbar spondylosis was diagnosed. The Veteran reported flare-ups on bending forward and sitting and/or walking for an extended period. His reported functional loss or impairment was due to paravertebral lumbar pain. ROM testing showed forward flexion to 60 degrees, extension to 20 degrees, and right and left lateral flexion and right and left lateral rotation to 25 degrees. The examiner indicated that ROM did not contribute to functional loss and that pain noted on examination (on extension) did not result in functional loss. There was no pain with weight-bearing, but there was tenderness to palpation along the paravertebral spine. The Veteran could perform repetitive use testing, and although the examiner noted that there was additional loss of function and/or ROM due to pain, ROM after 3 petitions was the same as ROM on active motion. It was noted that the Veteran was not examined immediately after repetitive use over time or during a flare-up, and the examiner indicated that the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time or during a flare-up. The examiner was unable to say without resort to speculation whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over a period of time or during a flare-up. She explained that pain, weakness, fatigability, or incoordination, could limit that functional ability of an individual who has a musculoskeletal pathology with repeated use over time or during a flare-up, however, to classify the functional limitation in the absence of the flare-up or after repeated use over time as significant, mild, moderate, or severe, would be mere speculation. There was no muscle spasm, but the Veteran had localized tenderness and guarding not resulting in abnormal gait or abnormal spinal contour. Muscle strength testing and reflex testing were normal. Straight leg raising tests were negative. No radiculopathy, ankylosis, muscle atrophy, or other neurologic abnormality was shown. IVDS was not shown; the Veteran reported constant use of a brace and cane for back support. X-rays showed arthritis and that there was not thoracic vertebral fracture with loss of 50 percent or more of height. Regarding functional limitation, the examiner opined that heavy lifting, carrying, pulling, flexion and extension of the back, and prolonged standing and sitting, exacerbated his back disability. An August 2015 VA treatment record notes that the Veteran reported low back tenderness. A November 2016 VA treatment record notes that the Veteran reported ongoing strong back pain and that he was trying to stay active despite the pain. An October 2018 VA treatment record notes that the Veteran's low back active ROM was full in all planes with pain in extension and rotation, and that he ambulated unaided using a lumbosacral support brace. An April 2019 VA treatment record notes that the Veteran had lower back trapezius muscle tenderness, and his low back active ROM was full in all planes with pain in extension and rotation. A September 2019 VA treatment record notes that the Veteran reported that his chronic low back pain was stable with the use of Gabapentin, Meloxicam, and topical Diclofenac. He denied new or worsening symptoms and was offered acupuncture, but declined. At the March 2020 videoconference hearing, the Veteran reported that his back pain had increased in severity since his last examination, he had not been hospitalized due to his back disability, he received physical therapy 3 or 4 times, and he took Meloxicam. A May 2020 VA treatment record notes that the Veteran reported ongoing issues with chronic pain, and that he was managing symptoms well and could perform most activities of daily living (ADLs) by himself, and sometimes cared for his mother. A November 2020 VA treatment record notes that the Veteran reported he was able to engage in a moderate level of physical activity, that had difficulty bending over and bathing, and used a back brace and a cane. On August 2021 VA back examination, lumbar spondylosis was diagnosed. The Veteran reported frequent low back pain of 8/10, shooting pain, burning sensations, and mild low back tenderness to palpation that he related to bending, overuse, and prolonged sitting and standing, which was improved with rest and medication. He denied having flare-ups and having functional loss or impairment due to repeated use over time. ROM testing showed forward flexion to 60 degrees, extension to 10 degrees, and right and left lateral flexion and right and left lateral rotation to 10 degrees. ROM did not contribute to functional loss, and although pain was noted with all movements, such pain on active ROM did not result in functional loss. Passive ROM testing was not performed because the examiner determined that such testing might cause the Veteran severe pain or risk of further injury. No crepitus was shown, and there was mild pain on palpation of the lumbar spine. The Veteran could perform repetitive use testing with no additional loss of function or ROM. He was not examined after repeated use over time or during a flare up, and the examiner opined that evidence procured (statements by the Veteran) did not suggest pain, fatigability, weakness, lack of endurance, or incoordination significantly limited functional ability with repeated use over time or during a flare-up. It was noted that he had localized tenderness that did not result in abnormal gait or abnormal spinal contour, and that there was no muscle spasm or guarding. Muscle strength testing was normal, and there was no muscle atrophy. Straight leg raising tests were not performed to avoid injury. Bilateral lower extremity radiculopathy that affected the sciatic nerve root was noted. There were no other neurologic abnormalities and no ankylosis. IVDS was not shown; the Veteran reported constant use of a back brace and cane for his low back disability. The Veteran's low back disability has been assigned a 20 percent rating throughout the period on appeal. The evidence of record does not show that at any time during the period on appeal, the symptoms of the disability met (or approximated) the criteria for the next higher, 40 percent, rating. To warrant a 40 percent rating under the General Formula, the evidence would have to show that thoracolumbar spine forward flexion is limited to 30 degrees or less or that there is favorable ankylosis of the entire thoracolumbar spine. Such limitations are not shown. Instead, thoracolumbar forward flexion was to 60 degrees on March 2015 and August 2021 VA examinations. On March 2015 VA examination, he reported flare-ups on bending forward and sitting and/or walking for an extended period. The examiner was unable to opine (and had to result to speculation) regarding whether pain, weakness, fatigability, or incoordination significantly limited his functional ability with repeated use over a period of time and/or during a flare-up, but on examination there was no additional loss of ROM after repetitive testing. The examiner noted the spine was not ankylosed. October 2018 and April 2019 VA treatment records note pain on extension and rotation on ROM testing, but measurements were not provided. On August 2021 examination, the Veteran reported he did not have flare-ups, and no ankylosis was shown. The examiner opined that although the Veteran was not examined after repeated use over time or during a flare up, the evidence (statements from the Veteran) did not suggest pain, fatigability, weakness, lack of endurance, or incoordination significantly limited functional ability with repeated use over time or during a flare-up (particularly as the Veteran had denied having flare-ups). Ankylosis of the thoracolumbar spine was not found on any examination. Thus, even when considering the complaints of pain with functional loss and flare-ups, the preponderance of the evidence is against a finding of limitation of motion of flexion to 30 degrees or less or ankylosis of the spine. See DeLuca, 8 Vet. App. 202. As the criteria for the 20 percent rating assigned encompass the greatest degree of severity of lumbar spine disability shown at any time during the period for consideration, the Board finds that a rating in excess of 20 percent is not warranted. The Board has also considered whether separate further compensable ratings may be warranted for additional neurological manifestations of the Veteran's low back disability, but none beyond the recently service-connected and separately rated right and left lower extremity radiculopathy are shown. Considering the foregoing, the Board finds that the preponderance of the evidence is against this claim. Therefore, the appeal in this matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bayles, 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.