Citation Nr: 21071187 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 18-26 684 DATE: November 30, 2021 ORDER Entitlement to a disability rating greater than 10 percent prior to April 27, 2018, and greater than 20 percent thereafter, for degenerative disc disease of the lumbosacral spine is denied. FINDING OF FACT The record evidence shows that the Veteran's service-connected degenerative disc disease of the lumbosacral spine is manifested by, at worst, complaints of low back pain and a full range of motion throughout the appeal period. CONCLUSION OF LAW The criteria for a disability rating greater than 10 percent prior to April 27, 2018, and greater than 20 percent thereafter, for degenerative disc disease of the lumbosacral spine 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 Code (DC) 5242-5237 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1999 to April 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The RO assigned a higher 20 percent rating effective April 27, 2018, for the service-connected degenerative disc disease of the lumbosacral spine in a May 2018 rating decision. A virtual Board hearing was held in May 2021 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. In July 2021, the Board remanded the currently appealed claim to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. The Board directed that the AOJ obtain updated treatment records and schedule the Veteran for an updated examination to determine the current nature and severity of his service-connected lumbosacral spine disability. The AOJ concluded in August 2021 that there were no updated outpatient treatment records available for the Veteran. And the requested examination occurred that same month in August 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). The Board finds that the preponderance of the evidence is against granting the Veteran's claim of entitlement to a disability rating greater than 10 percent prior to April 27, 2018, and greater than 20 percent thereafter, for degenerative disc disease of the lumbosacral spine. The Veteran essentially contends that this disability is more disabling than currently evaluated. The record evidence does not support his assertions. It shows instead that this disability is manifested by, at worst, complaints of low back pain and a full range of motion throughout the appeal period (i.e., before and after April 27, 2018). These consistent findings on physical examinations conducted during the appeal period (i.e., before and after April 27, 2018) support the 10 percent and 20 percent ratings assigned for this disability before and after April 27, 2018, under DC 5242-5237, respectively. See 38 C.F.R. § 4.71a, DC 5242-5237 (2020). For example, on VA back (thoracolumbar spine) conditions Disability Benefits Questionnaire (DBQ) in June 2014, the Veteran's complaints included increased low back pain at night and "when at work due to activity tends to aggravate it." The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. The Veteran rated his average low back pain as 6 7/10 on a pain scale (with 10/10 being the worst imaginable pain). He described flare-ups as "increased activity tends to aggravate it most." Range of motion testing showed forward flexion to 90 degrees with objective evidence of pain beginning at 90 degrees or greater and no additional limitation of motion on repetitive testing. He experienced functional impairment or loss due to pain on movement, disturbance of locomotion, and interference with sitting, standing, and/or weight-bearing. Physical examination of the lumbosacral spine showed low lumbar tenderness to palpation, no muscle spasm or guarding, 5/5 muscle strength throughout, no muscle atrophy, normal deep tendon reflexes and sensation, negative straight leg raising bilaterally, no radiculopathy, and no ankylosis, other neurologic abnormalities, or intervertebral disc syndrome. X-rays showed arthritis. The diagnosis was degenerative arthritis of the spine. VA x-rays of the lumbosacral spine taken in July 2014 showed normal disc spaces, minimal spurring at L1-2 vertebral bodies, and no subluxation. VA x-rays of the lumbosacral spine taken in September 2017 showed mild loss of disc space in lower thoracic and upper lumbar spine, small osteophytes, and no subluxation. The Board notes that, because it previously found the April 27, 2018, VA back (thoracolumbar spine) conditions DBQ to be inadequate for VA adjudication purposes in the July 2021 remand, this evidence was not reviewed or relied upon in adjudicating the currently appealed claim. The Veteran testified at his May 2021 Board hearing that he experienced a constant low back ache with daily sharp pain down his legs. He also testified that he experienced problems with intercourse due to back pain and wore a back brace. See Board hearing transcript dated May 4, 2021, at pp. 3. He testified further that his low back pain disrupted his sleep and he avoided stairs "at all costs." Id., at pp. 5. He also testified further that his job accommodated his low back pain and he did not perform any physical labor with these accommodations. Id., at pp. 8. On VA back (thoracolumbar spine) conditions DBQ in August 2021, the Veteran's complaints included constant low back pain at the belt line with sharp pain down the right leg and tingling to the upper calf once a week which lasted for 1 minute at a time. The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. The Veteran reported that he was employed as a truck driver delivering and unloading pallets of pet food. He did not do heavy lifting. He also walked with his wife in periodic themed 5 kilometer walking events and rode a motorcycle. Walking up and down stairs and intercourse hurt his back. He denied experiencing flare-ups of back pain. He also denied any functional loss or impairment. Range of motion testing was all normal with forward flexion to 90 degrees actively and passively without pain, on weight-bearing and non weight-bearing, and no additional limitation of motion on repetitive testing. Physical examination of the lumbosacral spine showed no evidence of pain, crepitus, tenderness to palpation, guarding, or muscle spasm, 5/5 muscle strength throughout, no muscle atrophy, normal reflexes and sensation, negative straight leg raising bilaterally, and no radiculopathy, ankylosis, other neurologic abnormalities, or intervertebral disc syndrome. The VA examiner stated: The Veteran's current occupation requires considerable physical exertion as do many of his recreational activities. Degenerative disc disease does not cause pain with ascending or descending stairs. [The] Veteran rises easily from seated to standing position. [N]ormal balanced gait and even stride. [N]ormal toe walk heel walk and tandem gait. Reports tenderness to light palpation/increase pain with truncal rotation...and axial compression. Limited and inconsistent effort noted on exam. The diagnosis was degenerative disc disease other than intervertebral disc syndrome. Contrary to the Veteran's lay assertions and Board hearing testimony, the record evidence shows that his service-connected lumbosacral spine disability is manifested by, at worst, complaints of low back pain and a full range of motion throughout the appeal period (i.e., before and after April 27, 2018). VA examinations conducted in June 2014 and August 2021 showed that he had a full range of motion in his lumbosacral spine. The Board acknowledges that the Veteran reported experiencing pain beginning at 90 degrees of forward flexion in the lumbosacral spine at his June 2014 examination. Nevertheless, the Board finds that the Veteran's complaints are compensated adequately by the 10 percent and 20 percent ratings assigned before and after April 27, 2018, for his service-connected lumbosacral spine disability, respectively. See 38 C.F.R. § 4.71a, DC 5242-5237 (2020). The Board finds it highly significant that, at his most recent VA examination in August 2021, the Veteran had a full range of motion actively and passively in the lumbosacral spine without pain, in weight-bearing and non weight-bearing, and no additional limitation of motion on repetitive testing although the VA examiner noted that he only had given a "limited and inconsistent effort" during the examination. His efforts nevertheless produced an essentially normal physical examination of the lumbosacral spine as the VA examiner stated that his degenerative disc disease did not cause pain with ascending or descending stairs, he was able to get up easily from a seated to a standing position, he had a normal gait, and he only reported light tenderness to palpation. The Board also finds it highly significant that this VA examiner concluded that the Veteran's current occupation and recreational habits "require[] considerable physical exertion." This persuasively suggests that he can work as a truck driver and pursue his recreational hobbies of riding a motorcycle despite the occupational and recreational impact of his service-connected lumbosacral spine disability. The Board does not doubt that the Veteran finds his service-connected lumbosacral spine disability debilitating and painful. The record evidence does not support assigning an increased rating for this disability either before or after April 27, 2018, and shows instead that it is, at worst, minimally disabling throughout the appeal period (i.e., before and after April 27, 2018). This finding is consistent with x-rays of the Veteran's lumbosacral spine disability taken in July 2014 and in September 2017 which showed the presence of minimal disability. He otherwise has not identified or submitted any evidence demonstrating his entitlement to a disability rating greater than 10 percent prior to April 27, 2018, and greater than 20 percent thereafter, for his service-connected degenerative disc disease of the lumbosacral spine. In summary, the Board finds that the criteria for a disability rating greater than 10 percent prior to April 27, 2018, and greater than 20 percent thereafter, for degenerative disc disease of the lumbosacral spine, 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.