Citation Nr: 21007991 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 18-25 315 DATE: February 11, 2021 ORDER Resolving all reasonable doubt in favor of the Veteran, a rating of 40 percent, but no higher, for lumbar spine disability is granted. FINDING OF FACT Resolving doubt in the Veteran’s favor, his lumbar spine disability is manifest by pain, limited motion with forward flexion to 20 degrees, and additional functional impairment; but without ankylosis or incapacitating episodes due to intervertebral disc syndrome (IVDS) lasting at least six weeks. CONCLUSION OF LAW The criteria for a rating of 40 percent, but no higher, for lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from August 1963 to July 1966. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The claim was previously remanded by the Board in December 2019. In October 2020, the Veteran and his representative were sent a letter informing them that the appeal had been received at the Board. The letter also gave them the opportunity to submit evidence or argument to support the claims. To date, the Board has not received any such evidence and/or argument, or a request for more time to make a submission. In a November 2020 letter, the Veteran’s representative requested that the Board wait the full 90 days from the date of Board’s letter before deciding the instant matter. As more than 90 days have elapsed, the Board finds that the matter is ripe for adjudication. This appeal has been advanced on the Board’s docket, pursuant to 38 U.S.C. § 7107 (a)(2) and 38 C.F.R. § 20.900 (c). A rating of 40 percent, but no higher, for lumbar spine disability is granted. The Veteran contends that he is entitled to a higher rating because his disability is more severe than the currently assigned 20 percent evaluation. See May 2018 VA Form 9. The Veteran’s lumbar spine disability is currently rated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic 5242. In this case, the question for consideration is the propriety of a non-initial evaluation. Thus, consideration of the evidence up to one year prior to September 9, 2016; the date the claim was received by VA, is appropriate. See Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010); September 2016 VA Form 21-526EZ. 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. [Include any other relevant Note(s).] 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). VA treatment records note that the Veteran complained of low back pain radiating into the right leg. See October 2016 VA treatment records. In July 2017, the Veteran was seen for complaints of occasional sharp and local low back pain exacerbated by bending forward or lifting. Examination showed range of motion in flexion, extension, lateral flexion, and rotation were largely within normal limits, but the clinician also noted range of motion limited in all direction without pain. The Veteran was afforded a VA examination in November 2016. The examiner noted a diagnosis of lumbar degenerative disc disease. The Veteran reported back spasms, decreased range of motion, intermittent pain, and trouble bending. The Veteran indicated that he had flare ups that necessitated rest. Upon testing, the initial range of motion in forward flexion ended at 55 degrees. Combined range of motion was 180 degrees. The Veteran was able to perform repetitive use testing without additional loss of function or range of motion. The examiner observed tenderness over the lumbar vertebra. However, there was no ankylosis, atrophy, abnormal sensory, radiculopathy, or IVDS. Abnormal reflex was limited to absent deep tendon reflexes in the left knee, which was attributed to a prior knee replacement. The Veteran regularly used a brace for his low back pain. The examiner could not say as to whether functional loss during a flare up or with repeated use. The examiner noted functional impact in difficulty lifting, climbing, bending, or getting on his knees for long periods. In support of his claim, the Veteran submitted a June 2018 letter from an orthopedic surgeon, Dr. Cambareri. The clinician performed an examination of the Veteran’s lumbar spine. The Veteran reported sharp and burning lower back pain that radiated into his bilateral hips. The Veteran indicated that his pain is exacerbated by bending, lifting, walking, coughing, and sneezing. The Veteran further reported fatigue with walking or other sports, lack of endurance, and limitations as to activities. Physical examination showed tenderness and limited motion. Specifically, the Veteran’s range of motion in forward flexion was limited to 20 degrees, extension to 5 degrees, and side to side bending to 10 degrees. The Veteran was noted to have motor strength of 5/5 in the lower extremities, intact to touch sensory examination of the lower extremities, and DTRs of 2+ in bilateral knees and ankles. The clinician concluded that the Veteran had significant loss in flexion but not have ankylosis. The clinician did not give a diagnosis of radiculopathy. Pursuant to the Board’s Remand, the Veteran was afforded another examination in July 2020. The examiner noted a diagnosis of degenerative arthritis of the spine, intervertebral disc syndrome, and right lower extremity radiculopathy. The examiner indicated that the new diagnoses of IVDS and radiculopathy are directly due to or related to his service-connected diagnosis. The Veteran reported low back pain but denied any flare-ups. He reported functional loss with difficulty climbing, walking, running, lifting and bending over due to increased back pain. Initial range of motion testing showed that the Veteran was limited in forward flexion to 90 degrees. Combined range of motion was 215 degrees. The Veteran was able to perform repetitive use testing without additional loss of function or range of motion. After consideration of functional loss due to pain, the examiner indicated that the Veteran’s range of motion is limited with forward flexion ending at 80 degrees and a combined range of motion of 180 degrees. The examiner observed guarding or spasms which results in abnormal gait or abnormal spine contour. However, there was no ankylosis, atrophy, abnormal sensory, abnormal muscle strength, abnormal deep tendon, or use of an assistive device. Although the examiner noted IVDS, there were no episodes of acute signs or symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The examiner indicated that the Veteran’s right lower extremity radiculopathy is mild. Upon review of the evidence and resolving all reasonable doubt in favor of the Veteran, a 40 percent rating is warranted for the Veteran’s lumbar spine disability. A review of the objective testing shows the Veteran’s lumbar spine was limited in forward flexion to 20 degrees during the private examination in 2018. This is consistent with a rating of 40 percent under the applicable diagnostic code. Although the VA examinations and VA treatment records showed forward flexion which was not as limited, there is no basis in the record to accord more probative value to the VA examinations as compared to the private examination. Each examination was performed by a trained clinician competent to evaluate the manifestations of the disability and interpret testing results in relation to the severity of a disability. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Each examination was internally consistent and supported its findings with a detailed report. The Board also notes that during the 2016 VA examination, the Veteran reported that his back pain worsens with walking, he gets a lot of back spasms, and has trouble bending. The Veteran also reported that his flareups occur if he bends down; his back pops and the flare-up will last for a couple of days prompting a need to rest. Notably, the Veteran was only able to achieve forward flexion to 55 degrees and the examiner was unable to estimate the degree to which flare-ups and/or repeated use over time would further impact the Veteran’s range of motion without resorting to mere speculation. 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. The examiner’s rationale for being unable to further discussion functional impairment is not adequate. In Sharp, the Court indicated that an examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Moreover, the Board observes that the July 2020 examiner also noted the presence of functional loss due to pain even though he estimated that the additional range of limited flexion motion would only be 10 degrees. Considering that the Veteran has shown range of motion limited to 20 degrees of forward flexion which is contemplated by a 40 percent rating, and in consideration of his functional impairment during flare-ups, the Board resolves doubt in his favor to find that the evidence more nearly approximates the criteria corresponding to a 40 percent rating for the entire appeal period. Conversely, the Board finds that a rating in excess of 40 percent is not warranted for any time during the pendency of the appeal. At no time has the Veteran shown ankylosis, favorable or unfavorable, of the thoracolumbar spine or entire spine, even when considering functional impairment. Thus, a rating in excess of 40 percent is not warranted. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, excess fatigability, and flare-ups. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating ankylosis, favorable or unfavorable, of the thoracolumbar spine or entire spine. The Board has considered whether separate ratings are warranted for neurologic manifestations. VA treatment records and the July 2020 VA examination note right leg radiculopathy. Service connection for right lower extremity radiculopathy was already granted in an August 2020 rating decision and the Veteran is seeking higher level review of that decision under the Appeals Modernization Act (AMA). See October 2020 VA Form 20-0996. Although the Veteran has complained of radiating pain to the bilateral hips, there is no evidence of other neurologic diagnosis other than the right lower extremity radiculopathy. The Board accords probative weight to the findings of the clinicians and examiners who evaluated the Veteran and failed to render a diagnosis relating to his left lower extremity. Consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. Although the Veteran has IVDS, the evidence of record did not indicate the Veteran experienced incapacitating episodes at any point during the appeal period; therefore, the alternative rating formula is not for application. Based on the foregoing, and with all reasonable doubt resolved in the Veteran’s favor- a rating of 40 percent, but not higher, is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Vuong, 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.