Citation Nr: 21072838 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 18-01 759 DATE: December 6, 2021 ORDER An initial rating higher than 10 percent for a low back disorder is denied. FINDING OF FACT Throughout the entire period on appeal, the Veteran's low back disorder does not show forward flexion functionally limited to 60 degrees or less, or combined range of motion (ROM) functionally limited to 120 degrees or less; and the Veteran's lumbar spine has not been shown to be productive of either muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. The record does not show prescribed bed rest to treat the Veteran's back disability or spinal ankylosis. CONCLUSION OF LAW Throughout the entire period on appeal, the criteria for an initial rating higher than 10 percent for a low back disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1997 to January 2001. The Veteran has a total disability evaluation based on individual unemployability, effective October 2017. This matter was before the Board of Veterans' Appeals (Board) in June 2021 and remanded for a new VA examination to determine the current severity of the Veteran's low back disorder, to include an opinion regarding functional loss during flare-ups. Pursuant to the June 2021 Board remand, the Veteran was afforded a new VA examination in July 2021. Further development having been completed; the matter is once again before the Board. Upon review of the evidence of record, to include the July 2021 VA examination, an initial rating higher than 10 percent for a low back disorder will be denied. Increased Ratings Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). When rating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain sets in. See VAOPGCPREC 9-98. Additionally, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. 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 condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis focuses on what evidence is needed to substantiate the claims and what the evidence shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). An initial rating higher than 10 percent for a low back disorder is denied. As an initial matter, the Veteran is service-connected for bilateral lower extremity radiculopathy associated with his service-connected lumbar strain, and he has been in receipt of a total disability rating based on individual unemployability, due to service-connected disabilities, since October 23, 2017. The Veteran contends that his low back disorder has worsened since his last VA examination in October 2017, and it is worse than contemplated by his current 10 percent rating under DC 5237, throughout the entire period on appeal. For the following reasons, the preponderance of the evidence is against the assignment of an initial rating higher than 10 percent, and the appeal will be denied. Under the current criteria, back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating 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 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 evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is 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. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is 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, DC 5237. 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. Under the current Formula for Rating Intervertebral Disc Syndrome 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 a 12-month period on appeal. 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 that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. §§ 4.71a, DC 5243, Note (1). During the October 2017 VA examination, the examiner noted a diagnosis of lumbar strain. The Veteran estimated he had pain 75 percent of the time. He reported flare-ups, during which he stated, "pain increases [and] I try to lay down." The Veteran also reported having functional loss or impairment, when he stated, "I can't lift things." Initial ROM measurements were recorded as the following: forward flexion to 85 degrees, extension to 20 degrees, bilateral flexion to 30 degrees, and bilateral rotation to 30 degrees. ROM was noted to cause a functional loss in that the Veteran has difficulty lifting. Pain was noted to cause functional loss on all movements. Evidence of pain on weight bearing was endorsed. The examiner also noted paraspinal muscle spasm to the lower thoracic and lumbar spine. Observed repetitive use testing was performed; however, no additional loss of function or ROM was noted after three repetitions. Repeated use over time testing was not performed. The examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limits functional ability with repeated use over a period of time. The examiner stated that upon examination, the Veteran had no change in ROM with repeated use. The examiner noted that the examination was not conducted during a flare-up. The examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limits functional ability with flare-ups. Instead, the examiner stated that it would be pure speculation to state if, with a significant flare-up, whether there would be any change in ROM or to what degree. The examiner noted that the Veteran has guarding and muscle spasm not resulting in abnormal gait or abnormal spinal contour. The examiner explained that the Veteran's muscle spasm is an involuntary tightening of a muscle in response to strain, overuse, weakness, or muscle pain; and his guarding can result in pain avoidance. Muscle strength testing revealed normal muscle strength on all areas tested on the Veteran's right side, and four out of five on all areas tested on his left side. Muscle atrophy was denied. The reflex examination revealed normal reflexes on the right side on all areas tested and hypoactive reflexes on the left side on all areas tested. The sensory examination revealed normal results on all areas tested, but for the left thigh/knee, lower leg/ankle, and foot/toes, which revealed decreased sensation to light touch. The straight leg raising test revealed negative results on the right leg and positive on the left leg. Left lower extremity radiculopathy was noted with involvement of the femoral and sciatic nerve roots. Ankylosis was denied. No other neurologic abnormalities were noted. IVDS was denied. The occasional use of a cane was endorsed. The examiner noted that October 2017 imaging did not show arthritis but showed a thoracic vertebral fracture with loss of 50 percent or more of height. Other significant findings were noted as the following: mild degenerative changes of the lumbosacral spine, grade I retrolisthesis of L3/L4, and suggestion of L5 pars defects, which was noted as incompletely evaluated due to the lack of oblique or cross-sectional imaging. In terms of functional impact, the examiner noted that the Veteran would have difficulty with physical labor that requires lifting, pushing, and pulling, but that he could do sedentary work. Evidence of pain when used in non-weight bearing was denied. Regarding pain with passive ROM, the examiner noted that testing cannot be performed or is not medically appropriate. However, as the examiner did not provide an opinion regarding functional loss during flare-ups, the October 2017 VA examination is inadequate in this regard. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); see also Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016). During his February 2020 Board hearing testimony, the Veteran reported flare-ups of lower back pain once per month, lasting up to two weeks in duration. He reported reduced ROM and "locking" and stabbing pain with movement in any direction. He reported that neck movement also occasionally results in lower back pain during a flare-up. Described in terms of limitation on ROM, he reported that his ROM is limited to approximately 5 and 10 degrees during a flare-up. In accordance with the June 2021 Board remand, the Veteran was afforded a new VA examination in July 2021. The examiner noted diagnoses of degenerative arthritis, lumbosacral strain, and bilateral lower extremity radiculopathy. The Veteran reported current back pain, which he treats with Hydrocodone. He reported flare-ups that occur once monthly, with a duration of two days to two weeks, and with a severity of moderate to severe, depending on activity. He reported that his flare-ups cause sharp, stabbing pain at times, and dull aching pain at other times. He stated that "every little movement makes it worse," and that he is unable to lay down for long periods. Precipitating factors were reported as bending, prolonged sitting and standing, and lifting. He reported that nothing relieves his pain during a flare-up. The Veteran reported that a flare-up will completely ruin his day or days, that every movement makes it worse, that he avoids stairs, and during which he must lay in bed or on the floor. In terms of functional loss or impairment, he reported that he is unable to do anything and that every movement seems to make it worse. Initial active ROM measurements were recorded as the following: forward flexion to 80 degrees, extension to 20 degrees, bilateral flexion to 20 degrees, and bilateral rotation to 20 degrees. ROM itself was noted not to contribute to a functional loss. Initial passive ROM testing results were the same as those for active ROM. Pain was noted on both active and passive ROM on all movements; however, no additional limitation of motion specifically attributable to pain, weakness, fatigability, incoordination, or other limitation was noted. However, the examiner noted that the Veteran has pain on active and passive ROM resulting in difficulty moving, and that the Veteran reported "that any movement can make it worse." Objective evidence of crepitus was denied. Mild to moderate tenderness to the lower back, especially on the left side, was endorsed. Observed repetitive use testing was performed; however, the Veteran had no additional loss of function or ROM after three repetitions. Repeated use over time testing was not performed. However, the examiner noted that pain and lack of endurance significantly limits functional ability with repeated use over time. The examiner recorded the following estimates of limitation of ROM after repeated use over time: forward flexion to 75 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 10 degrees, and bilateral rotation to 20 degrees. The examination was not conducted during a flare-up. However, the examiner noted that pain and lack of endurance significantly limits functional ability with flare-ups. The examiner recorded the following estimates of limitation of ROM with flare-ups: forward flexion to 75 degrees, extension to 15 degrees, bilateral flexion to 15 degrees, and bilateral rotation to 15 degrees. The examiner noted that the Veteran has muscle spasm to the left lower lumbar area not resulting in abnormal gait or abnormal spinal contour. No guarding was noted. The examiner noted that the Veteran is unable to sit or stand for long periods of time. Muscle strength testing revealed normal muscle strength on all areas tested on the Veteran's right side, and four out of five on all areas tested on his left side. Muscle atrophy was denied. The reflex examination revealed normal reflexes. The sensory examination revealed decreased sensation to light touch to the bilateral upper anterior thigh and left thigh/knee. The straight leg raising test revealed positive results bilaterally. Left lower extremity radiculopathy was noted with involvement of the femoral and sciatic nerve roots. Ankylosis was denied. No other neurologic abnormalities were noted. IVDS was denied. The regular use of a cane was endorsed. In terms of functional impact, the examiner noted that the Veteran is unemployed but previously worked as a night stocker at Walmart. The examiner noted that the Veteran's back pain, lumbar strain, and degenerative arthritis made working, to include lifting, difficult. As noted, the Veteran has a TDIU effective October 2017. Pursuant to 38 C.F.R. §§ 4.71a DC 5237, a higher, 20 percent rating, for a lumbar spine disability can only be assigned if, at a minimum, the Veteran exhibits forward lumbar flexion functionally limited to 60 degrees or less; a combined range of motion of the lumbar spine functionally limited to 120 degrees or less; or abnormal gate or abnormal spinal contour resulting from severe muscle spasm or guarding. Throughout the entire period on appeal, at worst, the Veteran has exhibited forward flexion of his lumbar spine limited to 75 degrees, and his combined ROM of his lumbar spine was not shown to be functionally limited to 120 degrees or less. In addition, the Veteran was not found to have guarding or muscle spasm severe enough to result in an abnormal gait or abnormal spine contour. Therefore, throughout the period on appeal, an initial rating higher than 10 percent for the Veteran's low back disorder is not warranted under DC 5237. Throughout the entire period on appeal, a higher rating under DC 5243 is also not warranted since the evidence does not show that the Veteran has IVDS. See 38 C.F.R. §§ 4.71a, DC 5243. Throughout the entire period on appeal, the preponderance of the evidence is against the assignment of an initial rating higher than 10 percent. While the Veteran experiences pain on ROM, pain has not been shown to have effectively limited forward flexion to 60 degrees or less, or to so functionally limit the ROM in his back that the combined range of such limited motion was 120 degrees or less. The weight of the evidence shows that, even when considering the potential for additional functional loss during episodes of flare-ups and pain as a basis for a higher rating, the Veteran's forward flexion has not been limited to less than 60 degrees, his combined ROM was not less than 120 degrees, and he did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Ankylosis is also not evidenced. For these reasons, the preponderance of the evidence weighs against a finding that the thoracolumbar spine disability more closely approximates the next higher, 20 percent rating, under the General Rating Formula, at any time during the period on appeal. See 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59; DeLuca, at 206-07. The Board has considered the Veteran's lay statements, to include his statements regarding limitation of motion during flare-ups. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). To the extent that the Veteran contends that a higher rating is warranted, his statements are outweighed by more probative evidence provided by the examinations of qualified medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). His lay statements do not provide any basis upon which to assign a higher rating. In conclusion, throughout the entire period on appeal, an initial rating higher than 10 percent is not warranted for the Veteran's service-connected low back disorder, and the claim is denied. As the preponderance of the evidence is against assignment of a higher rating, at any time during the period on appeal, the benefit-of-the doubt doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Timothy T. Emmart The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.