Citation Nr: 21008283 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 15-25 920 DATE: February 16, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for service-connected lumbar strain is denied. FINDING OF FACT The most credible and probative evidence of record indicates that the Veteran’s lumbar strain is not manifested by 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. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent for lumbar strain 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. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2008 to August 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a May 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing conducted by the undersigned Veterans Law Judge in June 2019. A transcript of the hearing has been associated with the Veteran’s VA claims file. The Board notes that the issues of entitlement to increased ratings for the Veteran’s service-connected back and knee disabilities were previously before the Board in October 2019 when they were remanded for further development. In an October 2020 rating decision, the RO increased the Veteran’s back and knee disabilities to 10 percent disabling each from August 12, 2012, the first day following his date of separation from service. The rating decision noted that as the requested 10 percent disability rating had been assigned for each of his knees, it was considered a full grant of the benefits sought on appeal. As the Veteran specifically requested 10 percent ratings for his knee disabilities in his August 2013 Notice of Disagreement, the Board considers this to be a full grant of the benefits sought on appeal and will not address whether the Veteran is entitled to a higher ratings for these disabilities. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Entitlement to an initial rating in excess of 10 percent for service-connected lumbar strain The Veteran contends that his lumbar strain is more severe than what is represented by a 10 percent rating. The Veteran’s lumbar strain 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. Unfavorable ankylosis is defined as “a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.” Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always” considered favorable ankylosis. Id. 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. Analysis The Veteran was provided with a VA back examination in May 2013 where he reported that his “entire lower back with tighten and he will take muscle relaxers and NSAIDs.” The Veteran also reported that during flare-ups, “his wife has to feed him and assist with toileting, wiping stool after BM, etc.” Range of motion testing showed flexion to 30 degrees, extension to 25 degrees, right and left lateral flexion to 30 degrees or greater, and right and left lateral rotation to 30 degrees or greater. The Veteran was able to perform repetitive use testing without any further loss in range of motion. He reported localized tenderness or pain to palpation on his paraspinal low back around L5. The Veteran did not have guarding or muscle spasms. The Veteran did not have muscle atrophy, radiculopathy, neurologic abnormalities, IVDS, or use assistive devices. Reflex and sensory testing revealed normal results. Notwithstanding these test results, the May 2013 examiner noted that that the Veteran had a “normal gait from the exam room, no distress.” The examiner added that the Veteran undressed and redressed quickly “with some stiff appearance,” and he “reache[d] for sandals at [the] close of exam with approximately 90-degree LS flexion without objective evidence of pain.” The examiner concluded that the “STRs and Veteran demeanor on exam[,] with lack of apparent significant discomfort objectively on exam, visualized flexion to approximately 90 degrees on conclusion of exam[,] along with normal ROMs on all ROM measurements besides flexion and extension[,] suggest that the ROMs documented above are not representative of the Veteran’s back condition.” The Veteran submitted a back conditions Disability Benefits Questionnaire (DBQ) in March 2016 where he reported low back pain with “radiation into both legs” and that he “is unable to make normal day to day movements without his back falling out.” The Veteran was not able to perform range of motion testing due to pain. However, range of motion testing after repetitive use testing was reported as flexion to 10 degrees, extension to 10 degrees, left and right lateral flexion to zero degrees, and left and right lateral rotation to zero degrees. The Veteran was noted to have guarding or muscle spasm that resulted in abnormal gait and spinal contour due to guarding. He did not have muscle atrophy, ankylosis, or other neurologic abnormalities. Muscle strength testing showed active movement against gravity with ankle plantar flexion, ankle dorsiflexion, foot abduction, and foot adduction. Reflex testing showed hypoactive DTRs in the knees and ankles. Sensory testing showed decreased sensation to light touch bilaterally. The Veteran was noted to have radiculopathy in the bilateral lower extremities. He was also found to have IVDS with at least six weeks of incapacitating episodes over the past 12 months. The Veteran was noted to use a brace constantly. The Veteran was most recently provided with a back conditions DBQ in October 2020 where he reported pain with running. He reported flare ups three to four times a year due to overuse. Range of motion testing was normal and there was no additional loss of function after repetitive use testing. Range of motion testing after repeated use over time and during flare ups was estimated to result in flexion to 70 degrees, extension to 25 degrees, right and left lateral flexion to 25 degrees, and right and left lateral rotation to 25 degrees. The Veteran was noted to have guarding or muscle spasm not resulting in abnormal gait or abnormal spinal contour. He did not have ankylosis, other neurologic abnormalities, or IVDS. The examiner noted that the Veteran “has no signs or symptoms on examination of IVDS and does not state in his history symptoms of IVDS, his examination in 2013 revealed a normal back radiograph and he missed an appt at the Boise VAMC in 2019 for an MRI of his back.” The examiner added that the Veteran “has a negative straight leg and no radiation complaints as well as an otherwise normal physical examination except subjective complaints of painful motion on exam.” As a result, she concluded that “there is no objective data to state the Veteran has IVDS with incapacitating episodes as noted in the 2016 C&P examination.” The Board finds that the preponderance of the evidence is against an initial rating in excess of 10 percent for the Veteran’s lumbar strain. The Board acknowledges the May 2013 VA examination indicating flexion limited to 30 degrees. However, the examiner specifically noted that the Veteran was able to reach to 90 degrees of flexion without any pain while reaching for his shoes at the end of the examination without objective evidence of pain and found that the documented range of motion testing conducted during the examination was not representative of the Veteran’s actual back disability symptoms. The examiner noted several other inconstancies to support this conclusion, such as the Veteran’s demeanor on examination, the “lack of apparent significant discomfort objectively on examination,” and the “normal ROMs on all ROM measurements besides flexion and extension.” As such, the Board finds that the May 2013 VA examination results are not valid for rating purposes. The Veteran has argued that the May 2013 VA examiner had a “pre-assumed disposition” because of his age. The Veteran also testified that was not wearing shoes during the examination but that he usually wears slip-ons or sandals. The Board has considered the Veteran’s arguments but finds them unpersuasive. The examiner has no motive, financial or otherwise, to falsify an examination report and, as demonstrated below, the most recent VA examination indicates that the Veteran’s symptoms are not as severe as were demonstrated during the 2013 ROM testing. To the extent the Veteran contends that he did not bend forward 90 degrees to put on shoes because he only wears sandals or slip-ons, the examiner noted that the Veteran had arrived in sandals in block 17 of the report, but observed that he bent over to put them on. Subsequent test results appear to support the examiner’s conclusion on the Veteran’s range of motion. As a result, the Board finds that the range of motion test results recorded during the 2013 examination are inadequate and places little weight of probative value on the Veteran’s arguments. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). The Board also finds that the March 2016 DBQ is inadequate for rating purposes. This examination report contains internal inconsistencies regarding the Veteran’s range of motion testing. The Veteran was reported to have too much pain to perform initial range of motion testing, but the report indicates that he was able to perform repetitive use testing resulting in flexion and extension to 10 degrees and bilateral flexion and rotation to zero degrees. There is no explanation why the Veteran was not able to perform initial range of motion testing but was able to do repetitive use testing. Absent some explanation, the Board finds that such findings render the examination internally inconsistent. There is no indication that these ROM results were estimates based on a review of the claims file or the Veteran’s description of his limitations. In addition, this clinician indicated that the Veteran’s symptomology has resulted in bedrest prescribed by a physician, and treatment by a physician, for at least 6 weeks during the past 12 months. However, no such symptomatology or treatment is recorded in the claims file. The Veteran has not alleged that he was prescribed bedrest for more than six weeks. Instead, during the hearing, the Veteran reported that when he experiences a flare-up, he is “on the couch for two days.” The Veteran has not alleged that a health care provider has prescribed him bedrest or that he receives treatment during this period. Even if that were the case, the Veteran testified that these episodes occur “one to two times per year” and last for two days, not the six weeks as stated in the report. For these reasons, the Board finds that the March 2016 DBQ is inadequate, and the examination cannot be used as a basis to warrant an increased rating for the Veteran’s lumbar strain. Instead, the Board finds that the October 2020 DBQ is more probative than the March 2016 DBQ. The October 2020 examination showed normal initial range of motion testing, with flexion limited to 70 degrees after repeated use over time and with flare ups. The October 2020 DBQ was based on a thorough review of the evidence of record, was internally consistent, and provided a detailed report of the signs and symptoms necessary for evaluating the Veteran’s lumbar strain disability. The Board notes that the findings of the October 2020 DBQ support the 2013 VA examiner’s observation and the Board’s conclusion on the inadequacies of the 2016 DBQ as his symptoms were shown to be much less severe than reported. The Board acknowledges the Veteran’s lay reports of symptoms and functional loss due to less movement than normal, excess fatigability, pain on movement, swelling, instability of station, disturbance of locomotion, interference with sitting, interference with standing, tightening of his back muscles, his back falling out with normal day to day movements, and needing assistance with toileting. See May 2013 VA examination, March 2016 DBQ, and October 2020 DBQ. At the June 2019 Board hearing, the Veteran testified that he cannot pick up his two-year-old daughter or bend over half-way. The Veteran has also reported that his flare ups are incapacitating and results in him being hunched over. See January 2021 Appellant’s Post-Remand Brief. However, to the extent the Veteran contends that his symptoms are similar to those reported in the 2016 DBQ or the examination portion of the 2013 examination, the Board finds that such statements are inconsistent with the evidence of record and afforded a lower probative weight. Accordingly, the Board finds that the preponderance of evidence is against a rating in excess of 10 percent for the Veteran’s lumbar strain. The October 2020 DBQ found that the Veteran’s flexion was limited to 70 degrees with repeated use and during flare ups. These results do not warrant a rating in excess of 10 percent under Diagnostic Code 5237. The Board is cognizant that the March 2016 DBQ noted that the Veteran had guarding or muscle spasm that resulted in abnormal gait and spinal contour. However, as noted above, due to the inconsistencies in the March 2016 DBQ, the exam has been found to be inadequate for rating purposes. The March 2016 DBQ findings are also inconsistent with the most probative evidence of record as the October 2020 DBQ noted guarding or muscle spasm not resulting in abnormal gait or abnormal spinal contour. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. Although the March 2016 DBQ indicated that the Veteran had IVDS, the October 2020 examiner provided an opinion reconciling these findings with the evidence of record and explained that the Veteran did not have signs or symptoms of IVDS and there were no objective findings in the record supporting such a diagnosis. The Board finds that the October 2020 DBQ findings are more probative than the March 2016 DBQ findings regarding the issue of whether or not the Veteran suffers from IVDS because the October 2020 examiner explained how the evidence of record did not support such a diagnosis. On the other hand, the March 2016 DBQ did not contain any supporting evidence or explanation regarding the IVDS diagnosis. Additionally, the Board notes there is no other evidence in the record showing a diagnosis for IVDS, to include the May 2013 DBQ which also indicated negative results for IVDS or that the Veteran had been prescribed bedrest. Regarding neurological impairment, the Veteran has already been granted service connection for radiculopathy of the bilateral lower extremities 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. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for lumbar strain. 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. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morrad, 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.