Citation Nr: 21073366 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 16-45 455 DATE: December 8, 2021 ORDER Entitlement to a 20 percent disability rating, and no higher, for a lumbar spine strain from December 19, 2013 to August 1, 2021 is granted. Entitlement to a rating in excess of 40 percent for a lumbar spine strain since August 2, 2021 is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, from December 19, 2013 to August 1, 2021, her lumbar spine strain was manifested by pain and limitation of forward flexion greater than 30 degrees but not greater than 60 degrees. 2. Since August 2, 2021, the Veteran's lumbar spine strain is manifested by limitation of forward flexion of the thoracolumbar spine limited to 30 degrees or less. CONCLUSIONS OF LAW 1. From December 19, 2013 to August 1, 2021, the criteria for a rating of 20 percent, and no higher, for lumbar spine strain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237. 2. Since August 2, 2021, the criteria for a rating in excess of 40 percent for a lumbar spine strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2008 to May 2013, including deployment to Iraq. This matter has a complicated procedural history affecting the appeal period before the Board today. Service connection was granted for the lumbar spine disability in a July 2013 rating decision from a Department of Veteran's Affairs (VA) Regional Office (RO), which assigned an initial 20 percent disability rating effective May 27, 2013 (the day after separation from service). A notice of disagreement (NOD) was not received for this decision, but the Veteran filed a claim for increase on December 19, 2013. A VA examination was provided in conjunction with that claim in April 2014, within one year of the July 2013 rating decision. VA medical records created within the appeal period following a decision of the agency of original jurisdiction are constructively received for the purposes of 38 C.F.R. § 3.156(b), regardless of whether the VA adjudicator had knowledge of their existence. Lang v. Wilkie, 971 F.3d 1348 (2020). Therefore, the VA examination served the function of keeping the July 2013 decision from becoming final until it was considered in an adjudication. In April 2014 VA issued a decision considering the new evidence, which satisfied the requirements of Beraud v. McDonald, 766 F.3d 1402 (Fed. Cir. 2014) and the initial rating assigned by the July 2013 rating decision became final. Based on the April 2014 VA examination, the RO proposed a rating reduction and implicitly denied the December 2013 increased rating claim for the lumbar spine. However, the Veteran was never provided notice of a denial of her increased rating claim or appellate rights for that denial. As a result, the December 2013 increased rating claim remained pending. In a September 2014 rating decision by the RO, the Veteran's 20 percent rating for her lumbar spine was reduced to 10 percent disabling effective December 1, 2014. In March 2015 the RO issued a rating decision explicitly denying an increased rating for lumbar spine and providing appellate rights. The Veteran filed a timely NOD in April 2015 that brings the instant matter before the Board of Veterans' Appeals (Board). The Board finds that the appeal period begins on December 19, 2013, the date of the increased rating claim that has remained pending. The Board remanded the appeal in May 2021 for additional development. In September 2021 the RO granted a partial increased rating to 40 percent effective August 2, 2021. Therefore, the issue before the Board is whether the Veteran is entitled to a rating in excess of: 20 percent from December 19, 2013 to November 30, 2014, 10 percent from December 1, 2014 to August 1, 2021, and 40 percent from August 2, 2021. Increased Rating A disability rating is determined by applying VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate DCs. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran's disability, 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Under the General Rating Formula for Diseases and Injuries of the Spine, 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). 1. Entitlement to a 20 percent disability rating, and no higher, for a lumbar spine strain from December 19, 2013 to August 1, 2021. As laid out in the Introduction, a September 2014 rating decision reduced the Veteran's 20 percent rating for her lumbar spine to 10 percent from December 1, 2014 to August 1, 2021 under DC 5237. As the Board is granting a 20 percent rating from December 19, 2013 to August 2, 2021, within its jurisdiction over the increased rating claim that spans the entire period of reduction, the Board finds it need not further address the now-moot reduction. Additionally, the criteria for evaluating spine disabilities were amended effective February 7, 2021. However, no changes were made to the General Rating Formula for Disease and Injuries of the Spine. The Veteran asserts the disability rating for her lumbar strain did not accurately reflect the severity of her disability prior to August 2, 2021 and asserts entitlement to a higher rating. The Board finds that the preponderance of the evidence shows a 20 percent rating, and no higher, for her lumbar strain from December 19, 2013 to August 1, 2021 is warranted. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain and limited mobility. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the Veteran does not report flare ups that caused any degree of additional limitation. The Veteran's limitation of motion from December 19, 2013 to August 1, 2021 did not more nearly approximate forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The Veteran's VA treatment records show she reported back pain with tenderness on palpitation in December 2013. Her gait was noted to be normal. She again stated no surgeries were recommended for her lumbar strain after service. The Veteran underwent an additional VA examination in April 2014. The examiner noted the Veteran still had a current lumbar strain with low back pain and spasms. The Veteran denied flare ups of her condition. Her forward flexion was measured as normal at 90 degrees with pain experienced at 45 degrees. After performing repetitive use over time, the Veteran's forward flexion was still measured to be normal at 90 degrees. The examiner noted functional loss due to pain. The Veteran's gait and muscle strength were both normal with no signs of muscle atrophy. Her reflexes were also marked as normal with no signs of radiculopathy. No ankylosis nor neurological abnormalities were noted. No intervertebral disk syndrome (IVDS) was noted nor did the Veteran report the need for an assistive device. The Veteran submitted private medical records from July 2014 in which she reports chronic low back pain for years. The provider noted that the Veteran, while demonstrating high fear avoidance, also has "decreased spine mobility" with "deficits in spinal kinesthesia and stability." The examiner then notes, "due to chronic pain and high fear-avoidance beliefs, [the Veteran] demonstrates significant functional limitations." No range of motion measurements were taken at this appointment despite the provider noting significant range of motion limitations. In July 2014, an x ray was taken of the Veteran's spine to which the provider stated was normal. In August 2014, an MRI of the Veteran's spine was performed. The provider noted that lower thoracic spine was within normal limits and diagnosed the Veteran with minimal L5-S1 facet arthrosis but stated the MRI was otherwise unremarkable. The Veteran underwent an additional VA examination in February 2015. Here, the examiner noted degenerative arthritis of the spine based on the August 2014 MRI. The Veteran again denied flare ups of her lumbar condition. The Veteran's forward flexion was limited to 40 degrees which contributes to functional loss due to pain. The examiner then noted pain with weight-bearing but no pain on palpitation of the spine. During repetitive use over time testing the Veteran's forward flexion was still measured to be 40 degrees. The Veteran did not report guarding nor muscle spasms. The Veteran's muscle strength and reflexes were noted to be normal with no muscle atrophy present. The Veteran did not report any symptoms of radiculopathy nor was ankylosis noted. The Veteran's spine was negative for IVDS and she did not report the need for an assistive device. In March 2015, VA obtained an addendum opinion to the February 2015 VA examination. The examiner stated that the Veteran's lumbar spine strain did not cause her lumbar arthritis with facet involvement. The examiner reasoned that a strain is a muscular condition where arthritis is a bone condition. As a result, a muscle condition could not result in a condition affecting the bones in the Veteran's spine. He concluded by stating that the limitation of motion present during the February 2015 VA examination was due to her arthritis and not her service-connected lumbar spine strain. In the Veteran's April 2015 notice of disagreement, the Veteran asserts that the February 2015 VA examination is not an accurate representation of her limited range of motion. The Veteran asserts that the examiner instructed her to "'bend as much as [she] could even with pain.'" The Veteran asserts she informed the examiner that even the slightest bend would cause excruciating pain to her lumbar spine. She was then told if she did not comply with the examiner's instructions to bend as far as she could despite her pain, the examiner would note her refusal to comply with the VA examination. As a result, the Veteran placed herself in a significant amount of pain by bending further than she normally would as to comply with the VA examiner's instructions and avoid a notion of refusal to follow instructions. The Veteran's VA treatment records show the Veteran continued to report low back pain through July 2015. In February 2016, the Veteran reported chronic low back pain with sharp, throbbing pain in her back with no known trauma nor injuries. The Veteran denied bowel and bladder issues, numbness, weakness, or radiation of pain. In her September 2016 VA Form 9, the Veteran reported she could not climb stairs nor stand for "very long" as the pain is "severe and excruciating." She often had to lie in bed due to the pain as medications do not reduce her discomfort. The Veteran reported she could not effectively work or do her daily activities from the persistent pain. Her VA treatment records from August 2017 show the Veteran reported pain that comes and goes. She states it hurts when she lies in bed and that she has to shift positions to alleviate the pain. In August 2018 she underwent acupuncture in the form of therapeutic cupping to attempt to ease her significant discomfort. The Veteran's record shows she continued to report back pain. In February 2019, the Veteran reported her pain continues but denied any radiating pain. The Veteran continued to report low back pain through at least April 2021. The Board has considered whether the requirement of ankylosis can be met with evidence of the functional equivalent of ankylosis (i.e., functional immobility of the joint) during a flare-up. Chavis v. McDonough, 34 Vet. App. 1 (2021). However, the evidence does not indicate that the Veteran reported flare ups in any private medical record, VA medical record, nor VA examination. The Veteran does assert that physical exertion increases her pain, weakness, and lessens her ability to bend. However, she did not report flare-ups resulting in an inability to bend at all with the frequency or duration to support a finding that the overall disability picture approximates functional ankylosis. The Board finds that the requirement of ankylosis cannot be met with evidence of the functional equivalent of ankylosis in this particular case. Consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. However, the Veteran does not have IVDS, and 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. The Veteran's April 2014, and February 2015 VA examinations all declined to diagnose the Veteran with IVDS. Additionally, none of the examinations stated that the Veteran had required bed rest prescribed by a physician in the past 12 months. The Veteran's outpatient VA treatment records and private medical records also do not indicate a IVDS diagnosis at any time during the appeal period. Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with her spine disability. Furthermore, while the February 2015 VA examiner noted degenerative arthritis in the Veteran's lumbar spine, the Veteran was not service connected for arthritis at the time. However, even had the Veteran's arthritis been service connected, an additional rating is not warranted. Under DC 5003, a rating of 10 percent is for application when there is degenerative arthritis, other than post-traumatic, and the limitation of motion of the specific joint involved (here the lumbar spine) is rated as noncompensable under the appropriate diagnostic codes. However, the Veteran's current lumbar spine condition is rated under DC 5237-5242 at 20 percent disabling due to her limitation of motion. An additional rating under DC 5003 is not permitted as specifically stated above as the Veteran is in receipt of a compensable rating under the appropriate diagnostic code. See 38 C.F.R. § 4.71a, DC 5003. Furthermore, no additional rating is warranted under DC 5010 as the Veteran did not suffer a traumatic injury to the lumbar spine. See 38 C.F.R. § 4.7a, DC 5010. There is conflicting evidence of record regarding whether the Veteran's limited motion is attributable to lumbar strain or arthritis prior to August 2, 2021. The Court in Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), stated that "when it is not possible to separate the effects of the [service-connected condition and the non-service-connected condition], VA regulations at 38 C.F.R. § 3.102, which require that reasonable doubt on any issue be resolved in the appellant's favor, clearly dictate that such signs and symptoms be attributed to the service-connected condition. 61 Fed. Reg. 52698 (Oct. 8, 1996). However, in a September 2021 rating decision, the Veteran's service-connected lumbar strain issue was changed to include arthritis. Resolving doubt in her favor, the Board attributes the lumbar symptoms to the service-connected disability for the purpose of this evaluation. Resolving any doubt in favor of the Veteran, her back pain and limitation of forward flexion more closely approximates the criteria for a 20 percent rating under DC 5237, and no higher, for her lumbar strain for the entire period from December 13, 2019 to August 2, 2021. However, the preponderance of the evidence is against a rating in excess of 20 percent for her lumber spine condition during this stage. There is no evidence of record to support that the Veteran's range of motion was limited to 30 degrees or less during this stage. Additionally, there is no evidence of record indicating the Veteran's lumbar spine condition resulted in favorable ankylosis of the entire thoracolumbar spine nor the functional equivalent as discussed above. In denying a rating in excess of 20 percent prior to August 2, 2021, 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. A 20 percent rating, but no higher, is granted from December 19, 2013 to August 1, 2021. 2. Entitlement to a rating in excess of 40 percent for a lumbar spine strain since August 2, 2021. The Veteran has made no assertions regarding the staged 40 percent rating from August 2, 2021. However, as the appeal has not been withdrawn and that grant does not represent a total grant of benefits sought on appeal, this claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). As stated above, the criteria for evaluating spine disabilities were amended effective February 7, 2021. However, no changes were made to the General Rating Formula for Disease and Injuries of the Spine. The Veteran's lumbar strain is rated under 38 C.F.R. § 4.71a, DC 5242. As indicated above, under the General Rating Formula for Diseases and Injuries of the Spine, 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. The staged 40 percent rating was granted effective on the date of a VA examination in August 2021 in which the examiner stated the Veteran's current diagnosis had changed. Her new diagnosis was degenerative arthritis of the lumbar spine and a lumbosacral strain. The Veteran reported "moderate" flare ups approximately 4 times a week that last for 1 to 2 hours. These flare ups result in pain and functional loss resulting in her forward flexion being limited to 20 degrees. The Veteran's initial range of motion was measured to be 40 degrees. Passive range of motion testing was not performed as it would have caused unnecessary pain to the Veteran. There was evidence of pain with weight bearing, non-weight bearing, active motion, and on rest that resulted in functional loss. No crepitus was found, however there was pain on palpitation of the spine. Repetitive use testing was conducted, and her forward flexion was measured to be 35 degrees. The Veteran did not report guarding, abnormal gait, nor muscle spasms. Her muscle strength was normal with no atrophy noted. Her sensory and reflex results were normal with no radiculopathy present. No ankylosis, neurological issues, nor IVDS were noted by the examiner. The Veteran reported occasional use of a brace. In September 2021, VA sought an addendum opinion to the August 2021 VA examination. Here, the examiner stated, "Lumbosacral arthrosis was diagnosed in addition to service-connected lumbosacral strain due to result of MRI of 8/2014 which indicates presence of facet arthrosis at L5-S1. Osteoarthritis is degeneration of joint cartilages. When a joint is injured as in a strain, it exposes the joint to development of degenerative joint disease (osteoarthritis). The Veteran's Lumbosacral strain has degenerated to osteoarthritis as MRI depicted." In summary, the examiner opined that the Veteran's current arthritis of the lumbar spine is a direct result of her service-connected lumbar strain. Furthermore, the Veteran stated that the symptoms of each condition, to include pain, overlap and attempting to categorize the symptoms in relation to each condition would be speculative. As a result, all symptoms asserted in the August 2021 VA examination are attributed to her service-connected lumbar spine condition. The evidence shows the Veteran's forward flexion was limited to, at most, 20 degrees since August 2, 2021 with no ankylosis nor the equivalent present. Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with her spine disability. See VA examination reports. The Board has considered whether the requirement of ankylosis can be met with evidence of the functional equivalent of ankylosis (i.e., functional immobility of the joint) during a flare-up. Chavis, 34 Vet. App. 1. However, the evidence does not indicate that the flare-ups during which the Veteran experiences pain, fatigability, and limited range of motion occur with the frequency or duration to approximate the overall disability picture during the appeal period. Specifically, flare-ups about 4 times per week times per week lasting 1 to 2 hours are too infrequent and too short to support a finding that the overall disability picture approximates functional ankylosis. Additionally, while the Veteran reports instances of functional loss, there are no reported instances of her back locking in place but rather flare ups include instances of pain relieved with medication and rest. The Board finds that the requirement of ankylosis cannot be met with evidence of the functional equivalent of ankylosis in this particular case. Consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. However, the Veteran does not have IVDS, and 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. The Veteran's August 2021 VA examination declined to diagnose the Veteran with IVDS. Additionally, the examination stated that the Veteran had required bed rest prescribed by a physician in the past 12 months. Furthermore, while the August 2021 VA examiner noted degenerative arthritis in the Veteran's lumbar spine, an additional rating in not warranted. Under DC 5003, a rating of 10 percent is for application when there is degenerative arthritis, other than post-traumatic, and the limitation of motion of the specific joint involved (here the lumbar spine) is rated as noncompensable under the appropriate diagnostic codes. However, the Veteran's current lumbar spine condition is rated under DC 5237-5242 at 40 percent disabling due to her limitation of motion. An additional rating under DC 5003 is not permitted as specifically stated above as the Veteran is in receipt of a compensable rating under the appropriate diagnostic code. See 38 C.F.R. § 4.7a, DC 5003. Furthermore, no additional rating is warranted under DC 5010 as the Veteran did not suffer a traumatic injury to the lumbar spine. See 38 C.F.R. § 4.7a, DC 5010. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 40 percent for her lumbar spine strain with arthritis. 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. The claim is denied. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, S. Conti 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.