Citation Nr: 21006219 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 14-39 683 DATE: February 3, 2021 ORDER A rating in excess of 10 percent for a lumbar strain prior to April 30, 2018, is denied. A 20 percent rating percent, but no more, for a lumbar strain since April 30, 2018, is granted, subject to the laws and regulations governing the payment of benefits. FINDINGS OF FACT 1. The Veteran had active service from July 1998 to November 2002 and from November 2011 to December 2012, with additional service in the Army Reserve. 2. Prior to April 30, 2018, a lumbar strain was characterized by subjective complains of chronic achy, burning, sharp, and non-radiating pain that increased when engaged in physical activity; objective findings include forward flexion at worst to at 80 degrees, a combined range of motion at worst to at 210 degrees, displacement of a lumbar intervertebral disc without incapacitating episodes, and no guarding or muscle spasms. 3. Since April 30, 2018, a lumbar strain has been characterized by subjective complaints of progressively worsening achy, throbbing, burning and sharp shooting axial low back pain that increases upon movement, walking, and leaning back; objective findings include forward flexion at worst to 50 degrees, a combined range of motion at worst to 100 degrees, displacement of a lumbar intervertebral disc without incapacitating episodes, and no guarding, muscle spasms, or ankylosis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a lumbar strain prior to April 30, 2018, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.71a, Diagnostic Codes (DCs) 5237, 5243 (2019). 2. The criteria for a 20 percent rating, but no more, for a lumbar strain have been met since April 30, 2018. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.71a, DCs 5237, 5243 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In April 2018, the Board denied the appeal for a rating in excess of 10 percent for a lumbar strain. The Veteran appealed to the Veterans Claims Court. The Court Clerk granted a Joint Motion for Remand (JMR), which vacated the Board’s decision and remanded the case for further development consistent with the JMR. The case was returned to the Board which, in November 2019, remanded the claim for additional development. The case has now been returned to the Board for further appellate action. Additionally, the Veteran testified at May 2016 and January 2021 hearings before the undersigned Veterans Law Judge. Copies of the transcripts have been associated with the claims file. Turning to the relevant laws and regulations, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. The Veteran’s lumbar strain has been rated under DC 5237 for a lumbosacral or cervical strain. The Board will consider all relevant diagnostic codes. In order to warrant a higher rating, the evidence must show: • forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees (20 percent under DC 5237); • combined range of motion of the thoracolumbar spine not greater than 120 degrees (20 percent under DC 5237); • muscle spasms or guarding severe enough to result in abnormal gait or spinal contour (20 percent under DC 5237); or • intervertebral disc syndrome (IVDS) with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks over the previous 12 months (20 percent under DC 5243). Rating Period Prior to April 30, 2018 In a December 2012 medical treatment note, the Veteran reported centralized low back pain. The clinician found that his lumbar spine demonstrated a full range of motion without muscle spasms and diagnosed low back pain. In a subsequent May 2013 VA examination, the Veteran reported constant pain that prevented him from running, exercising, or performing sit ups. He said that he had to watch what and how he lifted and described getting sharp pain or spasms in his back even when quickly turning of his spine. Upon examination, range of motion, at worst, was flexion to 80 degrees, extension to 10 degrees, right and left lateral rotation to 30 degrees each and right and left lateral flexion to 30 degrees each. The combined range of motion was 210 degrees. The examiner observed that the Veteran’s lumbar spine demonstrated less movement than normal and pain on movement but found that he did not have IVDS, guarding, or muscle spasms of the lumbar spine. The examiner diagnosed a lumbar strain. In subsequent medical treatment notes between May 2013 and April 30, 2018, as well as a November 2014 lay statement and May 2016 testimony before the undersigned Veterans Law Judge, the Veteran reported that he had constant chronic achy, burning, and non-radiating pain in his lumbar spine. He said that his pain increased when he lifted his children or engaged in physical activity such as running, sit ups, or pushups. He asserted that his lumbar pain was worsening. Clinicians diagnosed lumbar degenerative disc disease (DDD) and displacement of a lumbar intervertebral disc without myelopathy. Based on the above, a rating in excess of 10 degrees is not warranted prior to April 30, 2018. In this regard, the Veteran’s forward flexion, at worst, was measured to 80 degrees and the combined range of motion was, at worst, 210 degrees. Further, the record reflects that he did not have guarding or muscle spasms of his lumbar spine. Finally, while displacement of a lumbar intervertebral disc was diagnosed, the record fails to establish any accompanying incapacitating episodes. Accordingly, the medical evidence does not support a rating in excess of 10 degrees prior to April 30, 2018. Rating Period Since April 30, 2018 In an April 30, 2018, medical treatment note, the Veteran complained of low back pain that he said increased to an 8 out of 10 in severity. Upon examination, range of motion of the lumbar spine was forward flexion to 60 degrees, extension to 15 degrees, left and right lateral rotation to 20 degrees each, and left and right lateral flexion to 15 degrees each. The combined range of motion was 145 degrees. Ankylosis was not noted. In a subsequent April 2019 VA examination, the Veteran said that his lumbar strain was characterized by a burning sensation and sharp shooting pain. He said that as a result of his lumbar strain, he needed to be aware of what and how he lifted. He reported flare-ups and functional impairment of the lumbar spine, noting that when his back “went out,” he was usually on bed rest for up to 3 days. Upon examination, range of motion was measured as forward flexion to 50 degrees, extension to 5 degrees, right and left lateral rotation to 10 degrees each, right lateral flexion to 15 degrees, and left lateral flexion to 10 degrees. The combined range of motion was 100 degrees. The examiner found evidence of pain with weight bearing, on passive range of motion, and on non-weight bearing testing. The examiner diagnosed degenerative arthritis of the lumbar spine, scoliosis, and herniated discs, and determined that the Veteran did not have guarding or muscle spasms of his lumbar spine or exhibit ankylosis or IVDS. Further review of the record reveals that in January 2020 Reserve military personnel records (MPRs), an informal Physical Evaluation Board (PEB) proceeding found the Veteran to be physically unfit for duty as a result of a lumbar spine disorder. The PEB recommended that he be separated from Reserve service as a result of the disorder and offered that it reflected a 20 percent rating under DC 5237. The Reserve MPRs reveal that a subsequent January 2020 Order effectuated the PEB’s determination, to include the opinion that the disability warranted a 20 percent rating under DC 5237. In a March 2020 medical treatment note and October 2020 lay statement, the Veteran reported progressively worsening axial lower back pain starting in his low back that radiated to his buttocks bilaterally. He described the pain as achy, throbbing, and burning, and said that it was worsened by movement, walking, and leaning back. He said that as a result of his pain, he leaned to the left when he walked and was unable to walk upright. In January 2021 testimony, the Veteran reported experiencing flare-ups with limited range of motion lasting 2-3 days and daily pain. He related that he felt like his back was at the 20 percent level. He related having injections for pain and having a procedure to burn the nerve endings. Based on the above, the evidence currently of record supports a 20 percent rating, but no more, since April 30, 2018. In this regard, the forward flexion of the Veteran’s lumbar spine was measured at no greater than 60 degrees and the combined range of motion of the lumbar spine, at worst, was 100 degrees. Moreover, he has testified recently regarding the level of pain and limitations during flare-up which has been considered in this rating. Accordingly, the evidence supports a 20 percent rating as of April 30, 2018. Nevertheless, a rating in excess of 20 percent is not warranted. In order to support a rating in excess of 20 percent, the evidence must show: • forward flexion of the thoracolumbar spine 30 degrees or less (40 percent); • favorable ankylosis of the entire thoracolumbar spine (40 percent); • incapacitating episodes of IVDS having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40 percent). In this regard, the record reflects that the forward flexion of the Veteran’s lumbar spine was greater than 30 degrees for the entire period on appeal. Further, although range of motion is limited during flare-up, ankylosis (a fixation of the spine) has not been shown. Therefore, the evidence does not support a higher rating based on limitation of motion or ankylosis. Of note, the April 2018 private clinician diagnosed displacement of a lumbar intervertebral disc without myelopathy, and the Veteran stated in his April 2019 VA examination that he required bed rest for periods of up to 3 days when his back gave out; however, the record does not establish that his periods of bed rest were medically prescribed by a clinician. At the most recent hearing before the Board, he testified that his most severe episodes of back pain last 2-3 days. As such, the evidence does not support a rating in excess of 20 percent based on incapacitating episodes. The Board has also considered the lay statements and testimony submitted by the Veteran as to the current severity of his lumbar strain. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses and his statements and sworn testimony have been considered in granting a higher rating. Although he testified as to ongoing treatment and medical procedures which are not associated with the file, the Board is able to grant a higher rating based on the current record and a remand is not needed. Consideration has also been given to assigning staged ratings for the Veteran’s lumbar strain. However, at no time during the periods in question has his disability warranted higher schedular ratings than those now assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Spigelman, 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.