Citation Nr: 21008074 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 11-25 710 DATE: February 11, 2021 ORDER Entitlement to an evaluation in excess of 20 percent for a lumbar spine disability is denied. FINDING OF FACT The Veteran’s lumbar spine disability is manifested by forward flexion greater than 30 degrees but not greater than 60 degrees; and no incapacitating episodes requiring bed rest. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237-5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1980 to June 2000. This appeal comes before the Board of Veterans’ Appeals (Board) from an October 2010 rating decision issued by the Department of Veterans Affairs (VA) regional office (RO) in Columbia, South Carolina, which continued the 10 percent evaluation assigned. In January 2013, the evaluation was increased to 20 percent, effective February 2010, the date of the Veteran’s claim for an increased evaluation. The Veteran testified at a travel board hearing before the undersigned Veterans Law Judge (VLJ) in July 2013. A transcript of the hearing is associated with the claims file. This claim has a long and extensive history before the Board as detailed in a January 2019 Board remand decision. Most recently, the Veteran’s claims were previously remanded by the Board in a January 2019 decision. The Board finds that the RO has substantially complied with the January 2019 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that in a separate rating decision dated July 6, 2020, the Veteran was granted total disability due to individual unemployability (TDIU) from January 28, 2017. The Board also notes the Veteran was granted a temporary 100 percent rating for convalescence from his lumbar surgery March 6, 2004, through May 1, 2004. In a rating decision dated July 13, 2020, the Veteran was also granted service connection for a post-operative lumbar spine midline scar effective December 4, 2019. 1. Entitlement to an evaluation in excess of 20 percent for a lumbar spine disability The Veteran contends that he is entitled to a higher rating because of additional functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, and flare-ups related to his lumbar spine disability. In a September 2011 statement, the Veteran contends that he must take medicine for his lumbar spine disability. In April 2012, the Veteran reported that he believed he was entitled to an overall rating of 100 percent due to his chronic pain from a variety of service-connected conditions. The Board also notes the Veteran’s concern that the December 2019 VA examiner did not make a retrospective opinion regarding the functional loss over time or during flare ups back to the 2010 VA examination. In its January 2019 remand, the Board directed, “If possible, the VA examiner should also provide a retrospective medical opinion addressing the ranges of motion and additional functional impairment of the lumbar spine since 2010.” The examiner indicated he was unable to provide a retrospective opinion as he was not present during prior examinations. Thus, the Board finds that the VA examiner provided sufficient rationale for why he was unable to provide a retrospective opinion. The Board also notes that the December 2016 VA examiner indicated the Veteran did not experience flare-ups. The Board acknowledges the Veteran’s contentions regarding his imaging studies (including X-rays and MRIs) and medical treatments for his lumbar spine disability supporting a higher evaluation. However, the Board is obligated to follow the ratings criteria discussed below. The Board also notes that the Veteran is separately evaluated for radiculopathy of the right lower extremity at 20 percent from June 2012 (DC 8520), radiculopathy of the left lower extremity evaluated at 10 percent from December 2016 (DC 8520), and post-operative lumbar spine midline scar evaluated at 10 percent from December 2019 (DC 7804). The Veteran’s lumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. 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 Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. 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 Veteran’s VA and private treatment notes demonstrate frequent treatment and evaluation of the Veteran’s lumbar spine disability. However, these treatment notes do not demonstrate a significantly different picture of functional limitations than the Veteran’s VA examinations. Imaging from March 2010 showed postsurgical changes at the L5-S1 level on the left with no recurrent central canal stenos and minimal scar tissue surrounding the left S1 traversing nerve root; diffuse annular bulging at L4-5 with central stenosis; and left foraminal small disc extrusion at the L4-5 level which creates moderate left foraminal stenosis and contacts the left L4 exiting nerve root. The Veteran denied any numbness or tingling in the legs in March 2010. The Veteran reported 90 percent improvement in pain following a lumbar injection in April 2010. In November 2010, the Veteran was afforded a VA examination to evaluate the severity of his lumbar spine disability. The Veteran reported he worked as a mail carrier with no activity restrictions. The VA examiner noted the Veteran did not walk with a limp or require an assistive device. On range of motion testing, the Veteran had flexion 0 to 50 degrees with pain; right and left lateral bending of 0 to 40 degrees; right rotation of 0 to 35 degrees with pain; and left rotation of 0 to 45 degrees. The examination revealed a positive right-sided straight leg raise (SLR). The examination also revealed 5/5 motor strength, normal reflexes, normal sensation, and no atrophy. The examiner indicated the Veteran had no (additional) pain on range of motion or flare ups on any of the above joints except as described and opined that the Veteran had no additional limitations by pain, fatigue, weakness, or lack of endurance following repetitive use. The examiner also noted that the Veteran denied any other symptoms, periods of incapacitation, or flareups. An April 2012 MRI continued to show degenerative changes of the lower lumbar spine. The Veteran was afforded another VA examination in June 2012. The Veteran was diagnosed with lumbar strain with right sciatic radiculopathy with a history of laminectomy in 1994. The Veteran denied the use of any assistive device and reported he was able to tolerate walking 3 miles. The Veteran reported flare ups three times per month requiring additional medication. On range of motion testing, the Veteran had forward flexion of 35 degrees, extension of 20 degrees, right lateral flexion of 10 degrees, and left lateral flexion at 10 degrees. The Veteran had the same results after three repetitions. The examiner indicated the Veteran did not have any additional functional loss following repetitive use testing. The examiner did indicate the Veteran generally had functional loss of less movement than normal, pain on movement, and interference with sitting, standing, and/or weight-bearing. The Veteran had full strength in all muscle groups, normal reflexes, and normal sensation, but a positive right SLR. The Veteran reported moderate symptoms of radiculopathy in the right lower extremity (the Board notes that the Veteran is separately evaluated for right lower extremity radiculopathy from February 2010). The examiner opined the Veteran did not have IVDS and had not had any incapacitating episodes over the last 12 months. The examiner noted the Veteran used a magnetic belt for back pain and posture. Treatment notes from July 2013 indicate the Veteran had a mild limitation of range of motion due to stiffness in his lower back. At a September 2013 hearing, the Veteran testified that his back symptoms were “not as bad.” The Veteran reported activity did not aggravate his back pain, but instead it was aggravated in the morning or when there was bad weather. Following a remand from the Court of Appeals for Veterans Claims (CAVC) and the Board, the Veteran was afforded another VA examination in December 2016. The Veteran was noted to have diagnoses of degenerative arthritis of the lumbar spine, intervertebral disc syndrome, and history of L4-5 laminectomy in 2004. The Veteran reported constant 7-10/10 pain every day, reportedly takes medication, and goes to pain management. The Veteran reported pain down both his legs, left greater than right. The Veteran reported he does not have flare-ups of the thoracolumbar spine. The Veteran reported functional loss limiting his to sitting for an hour or two and worsening pain with lifting, but reported no difficulties standing or walking. On range of motion testing, the Veteran had forward flexion to 40 degrees (0 to 90); extension to 15 degrees; bilateral lateral flexion to 10 degrees; and bilateral later rotation to 15 degrees. The examiner indicated the loss of range of motion itself constituted a functional loss because the Veteran is unable to bend over. The examiner noted pain in all planes of range of motion testing, but no evidence of pain with weight bearing or localized tenderness or pain on palpation. The examiner indicated there was no additional functional loss following repetitive use testing. The examiner indicated he would be unable to assess functional limitations after repeated use overtime without result to mere speculation. The examiner noted the Veteran had additional contributing factors of instability of station, disturbance of locomotion, and interference with sitting and standing. The examination revealed full muscle strength, no atrophy, normal reflexes, and negative SLRs. The Veteran reported mild to severe bilateral symptoms of radiculopathy (The Board notes that a separate evaluation for left lower extremity radiculopathy is assigned from the date of the examination). The examiner indicated that while the Veteran does have IVDS, he has had no episodes requiring bed rest in the last 12 months. The examiner noted the Veteran had regular use of a brace. The examiner indicated that the Veteran has severe daily back pain exacerbated by lifting or bending which he describes as a flare up, but that the Veteran does not demonstrate evidence of periodic “flare-ups” requiring ER visits, bed rest, or urgent targeted treatment. The Veteran was afforded another VA examination in December 2019. The Veteran was noted to have diagnoses of lumbosacral strain, degenerative arthritis of the spine, and spondylolisthesis. The Veteran reported his lower back pain began in 1993 and has stayed the same. The Veteran reported symptoms of low back pain, stiffness, left lower extremity numbness and tingling and pain. The Veteran reported functional loss due to pain with prolonged walking, sitting, standing, bending over and lifting. On initial range of motion testing, the Veteran had forward flexion to 60 degrees (0 to 90 degrees normal); extension to 30 degrees (0 to 30 degrees); right and left lateral flexion to 20 degrees (0 to 30 degrees); and right and left lateral rotation to 20 degrees (0 to 30 degrees). The examiner opined the Veteran’s range of motion itself does not contribute to functional loss with pain that does not result in or cause a functional loss on forward flexion and extension. The examiner did note objective evidence of moderate, localized pain or tenderness on palpation. There was no evidence of pain on weight-bearing. The examiner indicated there was no additional loss of function or range of motion after three repetitions. The examiner indicated that pain causes significant additional functional loss over time. The examiner indicated the Veteran would experience additional loss in range of motion to 50 degrees of forward flexion, 20 degrees of extension, and 15 degrees for right and left lateral flexion and right and left lateral rotation. The examiner indicated the Veteran would experience the same additional functional loss as after repetitive use over time. The examiner indicated that the Veteran had additional factors contributing to disability including disturbance of locomotion, interference with sitting, interreference with standing, and pain with prolonged walking, sitting, and standing. The Veteran’s muscle strength, reflex, and sensory examination was normal. The Veteran had a positive SLR on the left and mild symptoms of radiculopathy in the left lower extremity. The Veteran had no ankylosis of the spine. The examiner indicated the Veteran did not have IVDS resulting in any physician prescribed bed rest. The examiner noted the Veteran occasionally used a back brace. The examiner also noted that he corrected the Veteran’s diagnoses for more specificity. In sum, at no point during the appeal period did the Veteran’s lumbar spine disability limit his forward flexion to 30 degrees or less or cause any ankylosis of the thoracolumbar spine. The Veteran’s forward flexion has improved over time from 35 degrees in June 2012 to 40 degrees in December 2016 to 60 degrees in December 2019 (and 50 degrees with repetitive use or during a flare-up). The Board also notes that the Veteran’s treatment records describe his range of motion as “adequate” or as having “mild” limitations. Accordingly, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the Veteran’s low back disability. The Board acknowledges the Veteran’s lay reports of significant MRI findings, symptoms and that there was functional loss due to pain, repetitive use, difficulty lifting heavy objects, and pain during repetitive use over time. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he has flare-ups about 3 times a month after significant activity 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. Regarding neurological impairment, the Veteran has already been granted service connection for bilateral lower extremity radiculopathy and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his 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. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. Taylor, 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.