Citation Nr: 21071564 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 12-07 897 DATE: November 30, 2021 ORDER Entitlement to a higher rating of 20 percent for a low back disability prior to April 21, 2021 is granted. Entitlement to a rating in excess of 20 percent from April 21, 2021 for a low back disability is denied. FINDING OF FACT The Veteran's low back disability manifests as forward flexion of the thoracolumbar spine to 45 degrees, and no ankylosis. CONCLUSIONS OF LAW 1. The criteria for entitlement to a higher rating of 20 percent prior to April 21, 2021, for a low back disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. 2. The criteria for entitlement to a rating in excess of 20 percent from April 21, 2021 for a low 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 CONCLUSIONS The Veteran served on active duty from August 1982 to August 1986 and from November 1986 to September 2004. This matter comes before the Board of Veterans' Appeals (Board) following September 2019 and March 2021 Board remands. This matter was originally on appeal from an April 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In November 2014, the Veteran testified during a hearing before the undersigned Veterans Law Judge (VLJ); a transcript of that hearing is of record. The Veteran's disability is currently rated under Diagnostic Code 5237. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson, 12 Vet. App. at 126-127; Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. 1. Entitlement to a rating in excess of 10 percent for a low back disability prior to April 21, 2021, and in excess of 20 percent from April 21, 2021 for a low back disability The Veteran contends that he is entitled to a higher rating for his back disability. The Veteran was granted service connection for a lumbar strain with an evaluation of 0 percent effective October 1, 2004. The Veteran's back disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Notably, there was a regulation change to musculoskeletal ratings effective February 7, 2021. However, the regulations that pertain to the back have, as is relevant here, not changed. An April 2008 rating decision increased the Veteran's evaluation to 10 percent, effective March 3, 2008. A March 2009 Naval treatment record shows that the Veteran reported low back pain with radiation to the right leg. X-rays were unremarkable. An August 2009 Naval MRI showed "no significant central canal or neuroforaminal stenosis." During an August 2009 follow-up to review the MRI results, the Veteran's gait was normal, patellar reflexes were normal, straight leg raises were negative, and no spasm of the paraspinal muscles were noted. The diagnosis was sciatica and lower back pain. The Veteran was afforded a VA examination in March 2010. The Veteran reported constant severe pain in the low back with increased pain into both legs. He endorsed numbness and paresthesias, but denied urinary symptoms, fecal incontinence, and erectile dysfunction. The Veteran reported a history of fatigue, decreased motion, stiffness, weakness, spasms, and pain. He reported constant, moderate to severe, aching, and sharp pain of the low back radiating into the thighs and back of the legs. The Veteran denied flare-ups and incapacitating episodes. He reported that he used a back brace. On examination, the Veteran's posture was normal, but his gait was slow and antalgic. There were no abnormal spinal curvatures and no evidence of ankylosis. The examiner noted muscle spasm, localized tenderness or guarding was not severe enough to be responsible for abnormal gait or abnormal spinal contour. Detailed motor and sensory exams were normal. A reflex exam showed hypoactive reflexes with knee jerk and absent reflexes with ankle jerk. Active range of motion testing revealed forward flexion to 70 degrees, extension to 15 degrees, left lateral flexion to 20 degrees, right lateral flexion to 15 degrees, and left and right lateral rotation to 30 degrees. There was objective evidence of pain on active range of motion and following repetitive motion, but there was no additional limitation of motion after three repetitions. Passive range of motion was unchanged from active range of motion. Lasègue's sign was negative. The examiner noted that the Veteran was employed full-time at a desk job and that he reported losing two weeks from work during the past twelve-month period. The examiner diagnosed the Veteran with lumbar strain and noted that there was "no objective evidence of lumbosacral radiculopathy." A July 2010 Naval treatment record shows that the Veteran denied tingling and numbness of his feet. A neurological exam showed normal sensation, no motor dysfunction, and no peripheral neuropathy. An August 2015 Naval treatment record shows that the Veteran reported a five-day history of severe back pain. He indicated that he was unable to move over the weekend but was moving better currently. He denied numbness or tingling. He reported occasional radiating of pain down his right leg to the knee, but none currently. On examination, there was tenderness to palpation of the paravertebral muscles bilaterally, and range of motion was decreased due to pain. There was no evidence of muscle spasms, and straight-leg raising testing was negative bilaterally. The Veteran's mobility was not limited. Sensory, motor strength, and reflex exams were normal. During the November 2014 Board hearing, the Veteran testified that his back pain and spasms increase with physical activity, such as mowing the lawn. He also reported radiating pain to his legs. An August 2015 Naval treatment record shows that the Veteran reported a five-day history of severe back pain. He indicated that he was unable to move over the weekend but was moving better currently. He denied numbness or tingling. He reported occasional radiating of pain down his right leg to the knee, but none currently. On examination, there was tenderness to palpation of the paravertebral muscles bilaterally, and range of motion was decreased due to pain. There was no evidence of muscle spasms, and straight-leg raising testing was negative bilaterally. The Veteran's mobility was not limited. Sensory, motor strength, and reflex exams were normal. The Veteran was afforded a VA examination in February 2016. The Veteran reported low back pain precipitated by activity, such as carrying three to four grocery bags. He also reported that if he sits in one place for too long, pain radiates to his hips. He indicated that his low back "hurts all the time." He reported missing five or six days of work due to his low back disability in the past year. He denied having had any periods of prescribed back rest or activity limitation. The Veteran reported that he worked full time in a clerical position. Range of motion testing revealed forward flexion to 85 degrees, extension to 30 degrees, left and right lateral flexion to 30 degrees, and left and right lateral rotation to 30 degrees. Pain was noted with forward flexion, right lateral flexion, and right lateral rotation, and the pain caused functional loss. Specifically, there was evidence of discomfort from 80 to 85 degrees of forward flexion and from 25 to 30 degrees of right lateral flexion and rotation. There was no evidence of pain with weight bearing. The right paraspinous musculature was mildly tender to palpation, but there were no corresponding visible or palpable signs of muscle spasm present. There was no additional loss of function or range of motion after three repetitions. The examiner indicated that it was impossible to state, without undue speculation, whether pain, fatigability, or incoordination could significantly limit functional ability when the spine is used repeatedly over a period of time because during the current examination, "there is minimal restriction to repeated ROM (minimum of three repeats for each direction)even in presence of discomfort." There was no evidence of guarding or muscle spasm. Muscle strength, reflex, and sensory exams were normal, and a straight leg raising test was negative. The examiner indicated that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. There was no evidence of ankylosis or IVDS, and the Veteran did not have any other neurologic abnormalities or findings related to his low back disability. The examiner indicated that the Veteran's low back disability impacted his ability to work in that "[a]ctivity involving physical stress/strain on lower backsuch as that which would require straining to lift heavy objects or prolonged standing/sitting without breakswould most likely result in increased lower back discomfort." (emphasis in original). The examiner rendered a diagnosis of lumbar strain with underlying DDD/DJD, no objective evidence for active radiculopathy. The Veteran was afforded a VA examination in October 2017. He reported daily low back pain, which he described as "more of muscle tightness and soreness." He indicated that he takes muscle relaxants and pain pills infrequently, sometimes once in two to three months. He denied flare-ups, and he reported nothing suggestive of radiculopathy or radiating pain "as he point[ed] to localized pain in the lower LS region 4 cm either side of the midline as muscle spasms." He reported tingling numbness in both feet and ankles, which he clarified was new. The Veteran indicated that he was employed full-time in a clerical position not involving strenuous activity. He also indicated that activity involving lifting heavy objects or prolonged sitting or standing without breaks increases his low back discomfort and pain. On examination, the Veteran was ambulatory without assistive devices. Range of motion testing revealed forward flexion to 80 degrees, extension to 30 degrees, left and right lateral flexion to 30 degrees, and left and right lateral rotation to 30 degrees. Pain was not noted on examination, and there was no evidence of pain with weight bearing. There was no pain on passive range of motion; passive range of motion was unchanged from active range of motion; and there was no evidence of pain when the back was used in non-weight bearing. There was no objective evidence of localized tenderness or pain on palpation. There was no additional loss of function or range of motion with three repetitions. There was no evidence of guarding or muscle spasm. Muscle strength and reflex exams were normal. The Veteran had decreased sensation of the lower leg/ankle and foot/toes bilaterally. The examiner indicated that this subjective decreased sensation was a peripheral neuropathy condition "not due to back condition," but was consistent with a history of "long standing (8-10 years per [V]eteran)" diabetes mellitus, type II and vitamin B12 deficiency. A straight leg raising test was negative, and there was no evidence of radicular pain or any other signs or symptoms due to radiculopathy. There was no evidence of ankylosis or IVDS, and the Veteran did not have any other neurologic abnormalities or findings related to his low back disability. The examiner rendered a diagnosis of lumbar strain and multi-level DDD. The examiner also indicated that there was no evidence of radiculopathy or sciatica and that the bilateral, symmetric, stocking distribution, sensory peripheral neuropathy was a new incidental finding that was not related to the Veteran's low back disability and was not due to radiculopathy or sciatica. The examiner opined that there was no evidence of neurological manifestations of the Veteran's low back disability, to include no evidence of bowel or bladder impairment, erectile dysfunction, or right and/or left lower extremity radiculopathy as a result of his back disability. In September 2019 the Board remanded the Veteran's claim following a June 2019 United States Court of Appeals for Veterans Claims (CAVC) Joint Motion for Remand (JMR). The Board remanded the claim for a VA examination that was compliant with Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). Following the September 2019 Board remand, the Veteran was afforded a new VA examination in December 2019. The examiner noted the Veteran experienced severe flare ups that occur at least six times per year. The Veteran reported the flare ups last seven to ten days and are precipitated by walking, lifting, and prolonged standing. The flare ups are alleviated by rest and medication. The examiner reported functional loss in interference with his ability to perform any task at work and he cannot walk without a cane for assistance. Range of motion testing revealed forward flexion to 80 degrees, extension to 5 degrees, right lateral flexion to 20 degrees, left lateral flexion to 5 degrees, right lateral rotation to 20 degrees and left lateral rotation to 5 degrees. The examiner reported flare ups range of motion as forward flexion to 80 degrees, extension to 5 degrees, right lateral flexion to 20 degrees, left lateral flexion to 5 degrees, right lateral rotation to 20 degrees and left lateral rotation to 5 degrees. The examiner noted the Veteran experienced muscle spasm resulting in abnormal gait or abnormal spinal contour. The examiner noted the Veteran had IVDS but did not note any periods of prescribed bed rest. The examiner stated, "reports flares will impair mobility and ambulation and has been suggested bed rest by Neurology." In January 2020 the Veteran was afforded another VA examination. The Veteran reported he gets about six to seven flare ups each year, and each flare up lasts three to seven days. The last flare up was in December 2019. The Veteran reported in the last year he had seven flare ups with a total of about 35 days of being in bed or in chair because of the flare ups. The flare ups are brought on by a lot of bending and lifting. Further, when he experiences a flare up, he lays in bed or in chair, takes pain medication and puts on ice packs alternating with heating pack on the back. The Veteran reported limitations in walking more than 30 minutes, standing in one position more than 15 minutes, sitting in one position (required for driving) more than 30-45 minutes (impacting driving ability), bending the back, twisting the back, pushing, pulling, walking upstairs and down stairs and lifting more than five pounds. In addition, the Veteran stated he cannot run. The examiner noted the Veteran declined range of motion testing due to severity of pain. The examiner noted evidence of pain with weight bearing. The examiner reported range of motion testing showed limitation in flexion to 75 degrees, extension to 25 degrees, right lateral flexion to 25 degrees, left lateral flexion to 25 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 25 degrees. The examiner noted there was no guarding or muscle spasm, and no ankylosis. The examiner note the Veteran did have IVDS resulting in 35 days of prescribed bed rest in the past 12 months. As stated above, the January 2020 examiner noted the Veteran did not experience guarding or muscle spasm. As a result, an addendum opinion was offered in August 2020 to clarify the conflicting medical opinions between the December 2019 and January 2020 VA examinations. The examiner stated, in comparing the examinations, she found that the January 2020 VAMC examination was done by an experienced board-certified neurologist, and the December 2019 QTC exam was not done by a doctor. Further, the examiner stated, she found that the QTC exam noted an abnormal gait but failed to document a left "torn calf muscle" documented by his doctor in November 2019, and he was taking muscle relaxers for the torn calf muscle. Based on these findings, the examiner viewed the January 2020 examination as more accurate. The examiner noted the Veteran would be welcome to be seen again to palpate his musculature and examine his gait, as she is a Board-certified doctor in physiatry, however due to the COVID-19 Pandemic, Veterans were not being seen in person at the time of her report. In addition, the examiner noted this was asked on the 2507 to be done without an exam. In September 2020 another addendum was submitted to clarify whether the examiner feels additional testing is needed in order to determine if the Veteran has an altered gait due to guarding/muscle spasm to the thoracolumbar spine. The examiner stated this examiner has not evaluated the Veteran, nor is it necessary to examine him, as the examiner finds the DBQ report of Dr. A.N. adequate to serve as the examination. In the October 2020 supplemental statement of the case (SSOC), the RO stated that both examiners confirmed the diagnosis of low back strain with bulging discs, sciatica and spondylosis, and painful loss of range of motion is noted on both examinations warranting a minimum evaluation of 10 percent. The examiner further noted that the VA contract examination dated December 23, 2019, indicates muscle spasm resulting in abnormal gait, which would allow for a 20 percent evaluation, however, the VAMC examination provided January 29, 2020, just over a month after the Veteran's contract examination, does not show muscle spasm or guarding. As a result of the addendum opinion, the Veteran's 10 percent evaluation for a low back disability was continued. In March 2021 the Board remanded the Veteran's claim in light of the August 2020 physician's comments and directed the AOJ to afford the Veteran another VA examination. In April 2021 the Veteran was afforded a new VA examination. The examiner indicated the Veteran reported flare ups, that he experiences chronic daily pain, and that prolonged car rides or sitting make it worse. The Veteran reported functional impairment as no lifting or bending, no prolonged sitting. The Veteran stated that he has to sit and stand. Range of motion testing revealed forward flexion to 45 degrees, extension to 10 degrees, left and right lateral flexion to 25 degrees, and left and right lateral rotation to 25 degrees. Pain was noted with all movements. The examiner indicated there was evidence of pain with weight-bearing, active motion, passive motion, and pain causes functional loss. The examiner noted range of motion during flare ups was forward flexion to 45 degrees, extension to 10 degrees, left and right lateral flexion to 25 degrees, and left and right lateral rotation to 25 degrees. Pain was noted with all movements. The examiner indicated the Veteran experienced muscle spasm not resulting in abnormal gait or abnormal spinal contour. The examiner noted muscle tightness and spasms palpated thoracolumbar spine. Further, the examiner noted guarding on all ranges of motion, not resulting in abnormal gait or abnormal spinal contour. The examiner noted the Veteran does not have ankylosis or IVDS. An August 2021 rating decision increased the Veteran's evaluation for a low back disability to 20 percent effective April 21, 2021. Prior to April 21, 2021, none of the above evidence reflects forward flexion limited to greater than 30 degrees but not greater than 60 degrees or combined range of motion not greater than 120 degrees; however, in light of the estimation of range of motion of 45 to 80 degrees during flare-ups, the Board finds that the Veteran is entitled to a 20 percent rating for the entire appeal period. However, a rating in excess of 20 percent is not warranted at any point. The above evidence does not reflect forward flexion to 30 degrees or less, even during flare-ups or on repetitive use, and even when considering functional loss due to weakness, fatigability, incoordination, or pain on movement. Nor is there evidence of ankylosis of the spine. Therefore, the Board finds that entitlement to a rating in excess of 20 percent at any point during the appeal period is not warranted. The Board acknowledges that the December 2019 VA examiner noted the Veteran had IVDS but did not note any periods of prescribed bed rest. As stated above, the examiner stated, "reports flares will impair mobility and ambulation and has been suggested bed rest by Neurology." At the January 2020 examination, the Veteran reported his last flare up was in December 2019, and in the last year he had seven flare ups with a total of about 35 days of being in the bed or in a chair because of the flare ups. The examiner indicated the Veteran had IVDS with 35 days of bed rest prescribed in the past 12 months. However, this findings is not supported by the evidence as there is no reference to any documented medical treatment supporting the notion of bed rest prescribed by a physician and treatment by a physician. The Veteran's treatment records do not show evidence of prescribed bed rest by a physician. Moreover, the Veteran described taking to the bed or chair. This is not persuasive evidence of a higher rating warranted on the basis of the Formula for Rating IVDS. The Board notes that some of the rating criteria under 38 C.F.R. § 4.71a have recently changed, effective February 7, 2021. There has been no substantive change to the criteria under which the Veteran is currently rated. Thus, a higher rating is not warranted under the new rating criteria. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Daley, 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.