Citation Nr: 21006609 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 14-08 220 DATE: February 4, 2021 ORDER Entitlement to a 20 percent rating, but no higher, for low back disability is granted effective June 22, 2012. Entitlement to a rating in excess of 20 percent for low back disability from July 17, 2017 is denied. FINDINGS OF FACT 1. Prior to July 17, 2017 the Veteran’s low back disability was manifested by functional loss compatible with the criteria for a 20 percent rating; forward flexion of the thoracolumbar spine 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine; or functional loss compatible with either of these conditions was not shown. 2. From July 17, 2017, the Veteran’s low back disability was not manifested by forward flexion of the thoracolumbar spine 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine or functional loss compatible with either of these conditions. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 20 percent rating, but no higher, for low back disability effective June 22, 2012 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.21, 4.25, 4.40, 4.45, 4.59, 4.71a; DC 5242. 2. The criteria for entitlement to a rating in excess of 20 percent for low back disability from July 17, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.21, 4.25, 4.40, 4.45, 4.59, 4.71a; Diagnostic Code (DC) 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1967 to June 1970, including service in Vietnam. This matter is on appeal before the Board of Veterans Appeals (Board) from a January 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2017, the Board remanded the appeal for further development. In a March 2019 decision, the Board denied the appeal. The Veteran appealed. In a February 2020 order, the Court of Appeals for Veterans Claims (Court) upheld a joint motion of the parties and remanded the appeal to the Board for action consistent with the Joint Motion. In May 2020, the Board remanded the appeal for further development. Increased Rating The Veteran’s low back disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242. 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, radiculopathy, 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). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. 1. Entitlement to an increased evaluation in excess of 10 percent prior to July 17, 2017 for low back disability. The Veteran filed his initial claim on June 22, 2012. At a May 2012 VA medical visit, the Veteran was noted to have degenerative joint disease of the lumbar spine with an MRI showing mild to moderate degenerative changes and ligamentum flavum hypertrophy causing mild to moderate spinal canal narrowing. The plan was to treat the problem conservatively with a prescription of Mobic. At a November 14, 2012 VA back conditions examination, the Veteran reported that his low back pain had become more frequent, intense and persistent over time. He also noted that it took less activity to trigger his low back pain. The examiner diagnosed the Veteran with lower back pain. The Veteran reported flare-ups upon increased activity, including sitting for prolonged periods in his specific work setting and ‘sleeping wrong.’ Range of motion testing showed flexion at 90 degrees with no evidence of painful motion. Extension was recorded at 30 degrees with evidence of painful motion at 30 degrees. Functional loss was noted as pain on movement with localized tenderness and pain to palpitation noted in the L4 and L5-S1 of the spine. Muscle spasms and guarding were not found with no abnormal gait or ankylosis. X-rays revealed arthritis of the thoracolumbar spine, but no vertebral fracture. Neurological examination was unremarkable, and the Veteran was not found to have radicular pain. The Veteran reported complaints of back pain with prolonged sitting and noted that he had to quit his job as a heavy equipment operator because the prolonged sitting and jarring caused by the equipment caused more and more low back pain. In a November 2012 statement (received in December 2012), the Veteran’s former employer indicated that the Veteran had started working for him as a hunting guide in the mid-1990s. The former employer noted that 8 or 10 years previously the Veteran started having severe back problems while doing normal hunting guide related tasks (packing, skinning, moving boats and motors etc.) The former employer indicated that the Veteran had since stopped hunting guide work for him and had given up his guide license. In a November 2012 statement (received in December 2012), the Veteran reported that his low back issues had gradually increased over the past 20 years. He indicated that he had had to stop professional hunting and heavy equipment operating, which had reduced his income. Thus, he was semi-retired with a minimum Social Security income. In an April 2013 notice of disagreement, the Veteran reported local tenderness that resulted in functional loss, fatigue, weakness and severe lack of endurance, abnormal gait, and difficulty walking any distance. He indicated that these problems limited all his daily activities. He noted that his back issues had gradually increased over the past 20 years becoming more debilitating every year, day by day. He indicated that he could no longer work in his primary profession as a result of the daily pain, discomfort and muscle spasms. The daily pain had become too great to bear any longer. In a March 2014 statement, the Veteran asserted that a rating in excess of 10 percent was warranted for his low back disability based on painful motion, pain and fatigue that occurred after repetitive use and during flare-ups. He also indicated that at his November 2012 examination, repetitive motion testing against resistance was not performed. The Veteran also reported that although straight leg testing was performed by the examiner, he ignored the pain experienced by the Veteran. The Veteran noted that his lower back pain involved more frequent episodes and had forced him to quit his job as a heavy equipment operator because prolonged sitting and jarring caused by his work resulted in more and more lower back pain to the point he was not able to tolerate it anymore. Moreover, he indicated that he was having too many flare-up episodes to guarantee his performance or availability as a hunting and fishing guide. In an August 2014 lay statement, the Veteran reported that treating physical therapy (PT) personnel were concerned about him losing feeling in his legs and falling, which had happened twice in the last 3 months. The Veteran noted that the PT exercises and stretching he was doing were helping his back somewhat. The Veteran reported being in constant pain even when taking medication and that he was experiencing leg weakness. The Veteran explained that he could no longer work in his primary profession as a result of daily pain, discomfort, and muscle spasms of his lower back. The Board will assign a higher, 20 percent rating for the Veteran’s low back disability effective June 22, 2012, the date the Veteran’s claim for increase was received. Notably, the Veteran was essentially found to have normal range of motion at the November 2012 VA examination, which by itself would not warrant assignment of a 20 percent rating. However, he did report significant flare-ups at the examination, noting that his pain was triggered by sleeping for prolonged periods and sleeping wrong and alleging inadequacies with the November 2012 examination. He also reported significant flare-ups and functional loss in the various statements summarized above. Accordingly, considering the flare-ups and loss of function and resolving reasonable doubt in the Veteran’s favor, the Board will assign the higher 20 percent rating. A higher, 40 percent rating is not warranted as the Veteran was not shown to have forward flexion to 30 degrees or less or ankylosis. Also, the Veteran has not asserted that he had this degree of limitation of function even on flare-ups. Notably, prior to July 17, 2017, the medical evidence does not appear to include an estimation by a VA examiner or other medical professional of additional loss of function on flare-ups. However, as explained, even the Veteran’s reports of loss of function on flare-ups/repetitive use are not compatible with assignment of a higher 40 percent rating. Accordingly, he is not prejudiced by the estimation of additional functional loss on flare-ups not having been provided. The Board has also considered whether a separate rating is warranted based on separate neurological impairment such as radiculopathy. However, the evidence does not establish that the Veteran suffered from any chronic radiculopathy prior to July 17, 2017. In this regard, the May 2012 VA treatment record did note lower extremity impairment but did not include a specific diagnosis of radiculopathy or other associated neurological impairment. Also, the Veteran did at times endorse symptoms that could potentially be compatible with radiculopathy, including in his August 2014 statement. However, as explained below, the November 2020 examiner specifically reviewed the claims file and ultimately determined that chronic radiculopathy had not been shown during the appeal period. As there is no medical evidence opinion of record to the contrary (i.e. a medical opinion indicating that chronic radiculopathy was present or medical evidence showing a diagnosis of chronic radiculopathy), the weight of the evidence is against a finding that such chronic associated neurological impairment was present. Finally, the Board notes that low back disability manifested by intervertebral disc syndrome can also be rated based on incapacitating episodes, which require bedrest prescribed by a physician. However, it is neither shown nor alleged that the Veteran has experienced incapacitating episodes from his low back disability, which have required bedrest prescribed by a physician. Accordingly, there is no basis for assigning a rating based on incapacitating episodes. 38 C.F.R. § 4.71(a), Diagnostic Code 5243, Entitlement to a rating in excess of 20 percent from July 17, 2017. At a July 2017 VA back examination, the examiner diagnosed the Veteran with a lumbar compression fracture at L4, degenerative arthritis of the spine, and lumbar degenerative disc disorder. The Veteran reported that his low back condition had been progressively worse and was even starting to interfere with all his non-sedentary activities of daily living. Range of motion testing was revealed as abnormal with flexion noted at 70 degrees and extension at 30 degrees. The examiner found that on repetitive use, forward flexion was reduced to 55 degrees due to pain and lack of endurance. The examiner also noted that pain and lack of endurance would cause additional limitation on flare-ups but that this could not be expressed in terms of reduced range of motion. The examiner indicated that the motion loss would be functional, not structural and the further restriction would be due to guarding and/or severity of pain symptoms at time of flare-up. The examiner did note weight bearing pain and arthritis with localized tenderness and pain on palpation with no flare-ups, ankylosis, or guarding of the spine. Regarding functional and occupational limitations, the examiner noted that the Veteran’s thoracolumbar spine condition did impact his ability to work. The examiner explained that the Veteran could function in a sedentary work environment if he was able to stand and stretch frequently. In an August 2017 Report of General Information, the Veteran indicated that he had not been able to be a hunting and fishing guide since 2012 and would no longer be able to perform this job due to his back disability. At a November 2018 VA contract back examination, the Veteran reported that weakness in his back made his legs feel weak. His pain would extend to his buttocks but not his legs bilaterally. He reported that his leg/back weakness had caused him to fall a couple of times. He indicated that he could not run, jump or stand for a prolonged period. He also indicated that he could not do long walks or car rides without stopping every 2 to 3 hours to stretch his back. He reported that he could not lift anything heavy at all and could not lift anything from the floor without reinjuring his back. The back pain also affected his intimacy with his wife. The examiner diagnosed the Veteran with degenerative arthritis of the lumbar spine. Abnormal range of motion was noted with flexion at 85 and extension at 30. The examiner noted that forward flexion caused tension in the Veteran’s back. The examiner also diagnosed the Veteran as negative for weight bearing and non-weight bearing pain with no evidence of flare-ups, guarding, ankylosis, or muscle spasms. Regarding occupational and functional limitations, the examiner noted that the Veteran has lost jobs due to an inability to work because of his back condition. The examiner explained that the Veteran could not lift heavy objects and could not lift objects from the floor without re-injuring his back. The examiner noted that the Veteran was unable to do any manual labor due to his back condition and that he no longer worked as a heavy machinery operator or as a hunting or fishing guide. The examiner diagnosed an increased severity of the Veteran’s symptoms; however, he reported no change to his service-connected diagnosis. In the May 2020 joint motion, the parties agreed that the November 2018 back examination was inadequate. The parties found that the examiner failed to provide range of motion estimates during flare-ups or provide an adequate explanation why such estimates could not be provided. Also, repetitive use findings were internally inconsistent because the examiner stated that there was a varying loss during repeated use over time while also stating there was no additional functional loss. Also, the Board, in its March 2019 decision, did not discuss favorable evidence regarding radiculopathy, including an August 2012 VA treatment record showing muscle weakness of the legs and hands that had begun five years earlier. Additionally, in an August 2014 statement, the Veteran reported that his physical therapist was concerned about him losing feeling in his leg and falling, and in a the November 2019 VA examination report, the Veteran reported experiencing weakness in his back that made his leg feel weak as well as pain extending to the buttocks but not into his legs bilaterally. At a November 2020 VA low back examination, the diagnosis was degenerative arthritis of the spine. The Veteran reported low back pain that was getting worse. He indicated that his mobility was reduced, and he continued to experience intermittent pain. He denied radiation of the pain to his hips. It was noted that he was taking meloxicam for his arthritis of the spine. He reported that he was not experiencing flare-ups. He indicated that he had functional impairment in his lower back because of a decrease in range of motion. He noted that his motion was limited by pain and his inability to lift heavy weight greater than 10 pounds for fear of causing pain. Further, he had been turned down for a job working in the oil fields due to a history of low back pain. Range of motion testing showed forward flexion to 80 degrees, extension to 25 degrees and bilateral lateral flexion and rotation to 30 degrees. The examiner noted that the Veteran could not bend forward or backwards with full range of motion without experiencing mild dull low back pain. The examiner also noted that the Veteran’s pain was best described as noted on exam as occurring on rest/non-movement and occurring on forward flexion and extension. The examiner found that there was no evidence of pain on weight-bearing. There was mild pain with moderate palpation of the center of spinal cord and bilateral sides of the lower back. Repetitive use testing did not show any additional limitation of motion after 3 repetitions. The Veteran did not have guarding or muscle spasms of the lumbar spine. The examiner did not find any additional factors contributing to disability. Neurological examination showed normal muscle strength in the lower extremities with no muscle atrophy. Sensory examination was entirely normal, and the Veteran was not found to have any signs or symptoms due to radiculopathy. There was also no ankylosis. The examiner noted that the Veteran’s low back pain caused him to stop work as a hunting and fishing guide because he could no longer walk long distances in the mountains or carry heavy fishing equipment or watercraft due to the strain that resulted in his lower back. The examiner also noted that there was no objective evidence of pain when the spine was in non-weight bearing and passive range of motion was not performed as it was not feasible to do this in a safe and reasonable manner. The examiner was unable to confirm a current chronic diagnosis of radiculopathy based on review of the claims file and the current examination findings. Although the Veteran did report muscle weakness/paresthesia during a medical visit in May 2012, the physician did not associate his lower back degenerative disease with these symptoms, noting that back pain was well-controlled with Mobic. Also, the claims file was absent for any chronic diagnosis of neurologic disorder following the Veteran’s lumbar spine injuries in service. The Board finds that 40 percent evaluation is not warranted because from July 17, 2017, forward flexion of the thoracolumbar spine was not found to be 30 degrees or less; nor was favorable ankylosis of the entire thoracolumbar spine shown. As noted above at the Veteran’s November 2018 VA examination diagnosed flexion at 85 and extension at 30 with no favorable ankylosis of the thoracolumbar spine. Similarly, at the November 2020 VA examination, range of motion testing showed forward flexion to 80 degrees and extension to 25 degrees without any ankylosis. Additionally, at the July 2017 VA examination, flexion was to 70 degrees and to 55 degrees after repetitive use. Also, the Veteran has not asserted that he had a more severe degree of limitation of function, compatible with forward flexion to 30 degrees or ankylosis, even on flare-ups. Notably, the November 2020 VA examiner did not estimate the Veteran’s loss of function on flare-ups because at that examination, the Veteran did not report flare-ups. Also, while the November 2017 VA examiner found that motion would be reduced on flare-ups, he did not find that it would be reduced on any chronic basis to 30 degrees or less forward flexion or that it would result in any ankylosis. Also, considering the evidence from July 17, 2017, even the Veteran’s reports of loss of function on flare-ups/repetitive use are not compatible with loss of function compatible to the severe level of disability characterized by forward flexion limited to 30 percent or favorable ankylosis. Notably, the Veteran did report during the July 2017 VA examination that his back pain was impacting all his movement related activities of daily living. However, he did not report any such impact compatible with forward flexion limited to 30 degrees or ankylosis (e.g. an inability to tie shoes due to not being able to bend far enough forward). Accordingly, he is not prejudiced by the specific estimation of additional functional loss on flare-ups not having been provided. The Board has also considered whether a separate rating is warranted based on separate neurological impairment such as radiculopathy. However, the evidence does not establish that the Veteran suffered from any chronic radiculopathy from July 17, 2017. In this regard, the July 2017, November 2018 and November 2020 VA examinations were all negative for any findings of radiculopathy or other associated neurological impairment. Notably, the Veteran has at times reported problems that could be compatible with radiculopathy, including radiation of pain to the buttocks (albeit not the legs) and back/leg weakness resulting in some falls. However, the November 2020 examiner specifically reviewed the claims file and opined that the presence of chronic radiculopathy during the appeal period was less likely than not. Upon examination designed specifically to determine if radiculopathy was present, muscle strength testing was 5/5, reflex examination was normal, straight leg raising test was negative, and the Veteran was not found to have radicular pain or any other signs or symptoms due to radiculopathy. As there is no medical evidence opinion of record to the contrary (i.e. a medical opinion indicating that chronic radiculopathy has been present or medical evidence showing a diagnosis of chronic radiculopathy), the weight of the evidence is against a finding that such chronic associated neurological impairment has been present. The Board has also considered a rating based on incapacitating episodes. However, it is neither shown nor alleged that the Veteran has experienced incapacitating episodes from his low back disability, which have required bedrest prescribed by a physician from July 17, 2017. Accordingly, there is no basis for assigning such a rating. 38 C.F.R. § 4.71(a), Diagnostic Code 5243. Finally, the Board is cognizant of the evidence that the Veteran’s low back disability had a significant effect on his ability to work during the appeal period. However, in an October 2019 decision, the Board granted entitlement to an extraschedular TDIU rating based primarily on the Veteran’s low back disability precluding him from working. In sum, effective June 22, 2012, the date the Veteran’s claim for increase was received, a 20 percent rating will be assigned for the Veteran’s low back disability. A rating in excess of 20 percent is not warranted at any time during the appeal period. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dan Brook, 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.