Citation Nr: 21007054 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 14-36 852 DATE: February 8, 2021 ORDER Entitlement to a disability rating in excess of 20 percent from October 13, 2010 for lumbar spine disability, is denied. FINDING OF FACT The Veteran's lumbar spine disability is manifested by loss of forward flexion of the thoracolumbar spine at no worse than 70 degrees during flare ups or repeated use and functional impairment from pain on motion during repeated use or during flare ups. CONCLUSION OF LAW The criteria for a disability rating from October 13, 2010, in excess of 20 percent for thoracolumbar spine strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (DCs) 5235-5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1992 to January 2000. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision issued by a VA Regional Office (RO) which denied the Veteran’s claim for an increased rating for his lumbar spine disability. In April 2018, the Board remanded the Veteran’s appeal for further development, to include providing the Veteran with a new VA examination. Most recently, this claim was again before the Board in May 2019, where it once more remanded the Veteran’s claim for a new VA examination finding the previous examination of August 2019 to be inadequate for failure to address functional loss during flare-ups. See Sharp v. Shulkin, 29Vet. App.26, 36 (2017). A review of the claims file now shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Rating The Veteran contends that her lumbar spine disability is entitled to a higher rating due to the functional loss due to pain, repeated motion, and flare ups that she regularly experiences and has progressively gotten worse since her initial disability rating that was assigned in May 2000. To that effect, she filed a claim for a rating increase in October 2010, which begins the period of appellate review now before the Board (plus consideration of the one-year look back period prior to the filing of that claim). See 38 C.F.R. § 3.400(o)(2), Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). The disability was assigned a 20 percent rating at the beginning of the appeal period and has remained so throughout. The Veteran’s lumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5243. 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, 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). 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. Entitlement to a disability rating in excess of 20 percent from October 13, 2010 for lumbar spine disability is denied. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the Veteran's spine disability. Based on the lay and medical evidence in the claims file, the Veteran's thoracolumbar spine strain disability does not warrant a rating in excess of 20 percent. The Veteran was most recently afforded a VA examination in November 2019 where the examiner noted the Veteran’s diagnosis of thoracolumbar spine strain with degenerative changes and bilateral sciatica as well as diagnosed the Veteran with intervertebral disc syndrome (IVDS). During the examination, the Veteran reported moderate flare ups after long periods of sitting or standing. The flare ups could last 2 to 3 days and be severe depending on the level of activity. These flare ups are alleviated with medications, rest, ice, stretching and lidocaine patches. The Veteran also reported that her lumbar spine disability makes it difficult to walk, stand or sit for longer than 20 minutes and her ability to lift over 20 pounds is severely limited. With regard to range of motion, the Veteran’s forward flexion on initial range of motion was measured at 80 degrees out of 90 degrees. The Veteran’s flexion was estimated to remain the same, considering functional impairment with repeated use and during flare ups. Pain was noted on examination, but the examiner stated that no additional loss of range of motion would result. The examiner also noted no evidence of muscle atrophy, no evidence of pain on passive range of motion, and no evidence of pain on non-weight bearing testing. Straight leg raising tests were negative and there were no signs of radiculopathy or any other neurological abnormality. The examiner noted that the Veteran does have IVDS however, her condition does not and has not required bed rest over the past 12 months. The Veteran also was not noted to use or require an assistive device because of her back. The record also contains VA examinations dated June 2014 and August 2018. The August 2018 examination similarly reported the Veteran's forward flexion on initial range of motion was measured at 80 degrees out of 90 degrees. The Veteran complained of functional impairments and limited mobility during flare ups, but the examination did not include a range of motion assessment or estimate for flare-ups or repeated use of motion. The examiner noted no IVDS, or other neurologic abnormalities, no ankylosis, no guarding or muscle spasms with normal reflexes and normal sensory results. However, the examiner did report the Veteran experienced mild radiculopathy pain in her left and right lower extremities. The June 2014 VA examination reported the Veteran's forward flexion on initial range of motion was measured at 70 degrees out of 90 degrees. The examiner noted normal muscle strength, no atrophy, no radiculopathy or other neurologic abnormalities nor ankylosis. This examiner also did not provide an estimate of specific range of motion lost during flare-ups. VA outpatient treatment records include a lumbar spine X-ray dated November 2016 indicating “transitional lumbosacral vertebral body with partial right sided sacralization of L5, degenerative disc disease at L5-S1 and facet arthropathy at L4-L5 and L5-S1”. An MRI of the Veteran’s lumbar spine dated in June 2018 also indicated degenerative changes of the lumbar spine with disc bulges, minimal foraminal stenosis and no significant spinal canal stenosis. Throughout her claim for an increased rating, the Veteran has consistently reported difficulty with and pain after prolonged standing, sitting and walking. She also has reported pain down the back of both thighs and back of lower legs down to both feet. In short, the evidence shows, the Veteran's lumbar spine disability is manifested by low back pain with flare-ups causing limitation of forward flexion to, at worst, 70 degrees taking into consideration functional impairment during flare-ups and on repeated use due to pain. Thus, a rating greater than 20 percent is not warranted. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss with prolonged standing, walking or running. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Indeed, the November 2019 VA examiner estimated that forward flexion would be limited to no worse than 80 degrees after repetitive motion and during a flare-up as described by the Veteran. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. The IVDS Rating Formula provides that a 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating requires that the disability be productive of incapacitating episodes having a total duration of at least four but less than six weeks per year. Finally, a maximum 60 percent rating is available when the condition is manifested by incapacitating episodes having a total duration of at least six weeks, during the past 12 months. Here, the Veteran has now been formally diagnosed with IVDS by the November 2019 VA examiner. However, 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. Regarding neurological impairment, the Board notes, that the Veteran is already service connected for left and right sciatic nerve impairment associated with chronic lumbosacral strain at 10 percent disabling effective August 7, 2018, and those issues are not properly on appeal here. The Board finds the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with her spine disability. In particular, during the June 2014, August 2018, and November 2019 VA examinations, the Veteran was assessed for potentially related conditions, including IVDS, and any neurological issues manifesting in radiculopathy. All three VA examinations found no indication of neurological abnormalities such as bowel or bladder problems and pathologic reflexes. IVDS was first diagnosed by the November 2019 VA examiner but as noted above, with no prescribed bed rest. The June 2014 and November 2019 VA examiners found no evidence of radiculopathy. In fact, the November 2019 and June 2014 examiners performed a straight leg test which if positive, would suggest radiculopathy often due to disc herniation. However, upon conducting such testing, the Veteran’s results were negative. The June 2014 examiner remarked that the “Veteran has subjective complaints of pain, numbness, tingling in lower legs” however, “there is no objective evidence of radiculopathy”. The August 2018 VA examiner, on the other hand, did report that the Veteran was experiencing mild radicular pain with paresthesias and/or dysesthesias in both lower extremities. This report appears to be the basis of her current award for sciatic nerve impairment of the bilateral lower extremities. Again, however, there is no evidence of any other neurological impairment associated with her lumbar spine disability that has not already been service-connected. As outlined above, the preponderance of the evidence is against finding any other separate ratings are warranted for neurological manifestations because, aside from the subjective sciatic-nerve complaints (which have already been service-connected and rated), there is no evidence of additional neurological findings. In adjudicating the current rating on appeal, the Board has given ample consideration to the Veteran’s lay reports of her symptomatology, as did the examiners in the examination reports of record. For reasons details above, the Board finds the rating currently assigned best reflects the symptoms and the manifestations of her lumbar spine disability. Based on the foregoing, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for a lumbar spine disability. 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. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.