Citation Nr: 21075369 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-12 694 DATE: December 20, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for lumbar strain with herniated nucleus pulposus is denied. FINDING OF FACT At no point during the pendency of the claim has the Veteran's service-connected lumbar strain with herniated nucleus pulposus manifested in forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for lumbar strain with herniated nucleus pulposus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from September 1975 to September 1979. This case was previously before the Board in April 2020, at which time it was remanded for further development. Subsequent to the most recent remand, the RO increased the disability rating of the Veteran's lumbar spine disability to 20 percent, effective December 30, 2013, by an October 2020 rating decision. Because the increased rating constitutes a partial grant of the benefits sought on appeal, the issue remains on appeal and is for consideration by the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). In March 2020, the Veteran attended a Travel Board hearing before the undersigned Veterans Law Judge. The hearing transcript is of record. Entitlement to a higher rating for lumbar strain with herniated nucleus pulposus Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. If, as here, there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based upon the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999); see AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original rating remains in controversy when less than the maximum available benefit is awarded); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating 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 weakened movement, excess fatigability and incoordination. Although pain may cause a functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). The Veteran's service-connected lumbar spine disability is evaluated under DC 5237, applicable to applicable to lumbosacral or cervical strain. See 38 C.F.R. § 4.71a. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). However, the criteria for DC 5237 pertaining to lumbar strain were not revised. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees 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 evaluation is warranted for forward flexion of the thoracolumbar spine of 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 rating is assigned for unfavorable ankylosis of the entire spine. For VA compensation purposes, ankylosis is defined as a condition in which all or part of the spine is fixed in flexion or extension. 38 C.F.R. § 4.71a at Note (5). Moreover, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion for the thoracolumbar spine is 240 degrees. Id. at Note (2). The criteria under the General Rating Formula for Diseases and Injuries of the Spine are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved. 38 C.F.R. § 4.71a. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment are to be evaluated separately under an appropriate Diagnostic Code. Id. at Note (1). The Veteran appeared for a VA back conditions examination in January 2015. The Veteran reported intermittent pain in the lower back. The pain was described as sharp pain ranging from zero to eight on a scale of ten. He also reported experiencing flare-ups lasting all day approximately once or twice per month. They were typically precipitated by turning the wrong way. The flare-ups were alleviated by time and rest. While experiencing a flare-up, the Veteran states that he was unable to do anything involving his back. As to functional impairment, with flare-ups, the Veteran reported that he would experience pain with sitting, lying down, and standing. He did not experience any limitations with sitting, walking, and standing without flare-ups. Range of motion showed forward flexion ranged from 0 to 80 degrees. Extension ranged from 0 to 25 degrees. Pain was noted on forward flexion and extension, but it did not result in or cause functional loss. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion. The Veteran was being examined immediately after repetitive use over time; however, pain, weakness, fatigability nor incoordination significantly limited his functional ability. Although the examination was not conducted during a flare-up, the examiner noted that the examination neither supported nor contradicted the Veteran's statements describing functional loss during flare-ups. The examiner was unable to state whether pain, weakness, fatigability nor incoordination significantly limited the Veteran's functional ability with flare-ups without resorting to mere speculation because he was not experiencing a flare at the time of examination. Thus, the examiner determined that it was not feasible to provide additional range of motion loss due to a flare-up. The examiner noted guarding that did not result in abnormal gait or abnormal spinal contour. During the Veteran's March 2020 Travel Board hearing, he testified that his disability had worsened since his January 2015 VA examination. He testified that he could only bend forward a few degrees before beginning to experience pain in his back. He also experienced pain in the mornings and throughout the day depending on his activities. He would modify his activities as needed due to his pain. He also indicated that he occasionally experienced flare-ups which he treated with heat and ice. Pursuant to the April 2020 Board remand, the Veteran appeared for a back conditions examination in October 2020. The Veteran reported intermittent pain in the lower back that does not radiate. He described the pain as an "inflamed hard spot in lower back" that made it difficult for him to sit and stand at times. He treated his symptoms with rest, heat, and ice application, as well as stretching when it did not cause pain. He also used Aleve occasionally. He also reported experiencing flare-ups lasting all day approximately once or twice per month. He indicated that he did not know what precipitated the flare-ups, though they were sometimes caused by twisting at the waist. The pain was described as eight on a scale of ten. As to functional impairment, the Veteran reported that he was unable to bend down at times. He also expressed having difficulty sitting or lying on his back for long periods of times. Range of motion showed forward flexion ranged from 0 to 60 degrees. Extension ranged from 0 to 25 degrees. The Veteran's abnormal range of motion itself contributed to functional loss described as difficulty getting back to standing from flexion and extension measurements. Pain that resulted in or caused functional loss was noted on forward flexion and extension. The examiner documented that there was difficulty with examining range of motion for flexion and extension due to discomfort and pain. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion. Although the examination was not conducted immediately after repetitive use over time nor during a flare-up, the examiner noted that the examination medically consistent with the Veteran's statement describing functional loss with repetitive use over time and during flare-ups. The examiner noted that pain and weakness caused functional loss with repeated use over a period of time and during flare-ups. Described in terms of range of motion, forward flexion ranged from 0 to 60 degrees and extension ranged from 0 to 20 degrees with repeated use over time. With flare-ups, described in terms of range of motion, forward flexion ranged from 0 to 60 degrees and extension ranged from 0 to 25 degrees. The examiner noted muscle spasm and guarding that did not result in abnormal gait or abnormal spinal contour. The examiner further noted the Veteran's gait was steady and no limp was observed. The medical and lay evidence includes VA treatment records and the Veteran's March 2020 hearing testimony. This evidence is consistent with the VA examination reports of record. The Board has carefully reviewed the evidence of record and Board finds the preponderance of the evidence is against an evaluation in excess of 20 percent for the Veteran's lumbar spine disability under the General Rating Criteria. The evidence shows that, at worst, forward flexion of the lumbar spine is limited to 60 degrees with repetitive use over time and during flares. See October 2020 VA examination report. The evidence does not show that forward flexion of the spine was limited to 30 degrees or less during the appeal period, and there is no evidence of ankylosis or symptoms consistent with ankylosis. The Board has considered the totality of the symptoms of the Veteran's lumbar spine disability and they have been factored into the Board's decision to continue the 20 percent disability rating. Although the Board finds the Veteran's assertions as to the severity of his symptoms to be credible, these reports alone to not warrant the assignment of an increased disability rating. Even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements do not more nearly approximate forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Moreover, the examinations that the Veteran attended included range of motion testing and his pain and lost range of motion were adequately evaluated. Even considering DeLuca, while the Veteran complains of flare-ups and pain in his lumbar spine that limits various activities, including sitting, lying down, and standing, the Veteran's symptoms have been considered in the rating above and indeed is part and parcel of the 20 percent rating that he is currently assigned. DeLuca, supra. Consideration has also been given to an increased evaluation for the Veteran's lumbar spine disability under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. However, the medical evidence does not indicate, and the Veteran does not contend, that he has been prescribed bed rest by a physician based on incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Therefore, the Veteran's service-connected lumbar spine disability does not warrant an increased disability rating under the formula for rating IVDS at any time during the appellate period. Thus, the Board concludes that an evaluation in excess of 20 percent is denied, as his disability picture is not more closely approximated by a 40 percent rating under the General Rating Formula for Diseases and Injuries of the Spine or a 40 percent rating under the Formula for Rating Intervertebral Disc Syndrome. 38 C.F.R. § 4.71a. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against a higher rating, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2020); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Board is grateful to the Veteran for his honorable service, and regrets that a more favorable outcome could not be reached. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tracy O. Joseph, 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.