Citation Nr: 21008352 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 10-08 452 DATE: February 16, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for a low back disability prior to April 7, 2013 is denied. Entitlement to a disability rating in excess of 40 percent for a low back disability as of April 7, 2013 is denied. FINDINGS OF FACT 1. Prior to April 7, 2013, the Veteran’s range of motion in his lumbar spine exceeded 30 degrees of forward flexion; incapacitating episodes have not been shown. 2. As of April 7, 2013, the Veteran’s range of motion in his lumbar spine has not more nearly approximated ankylosis of the lumbar spine; incapacitating episodes have not been shown. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 20 percent for a low back disability prior to April 7, 2013 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. 2. The criteria for entitlement to a disability rating in excess of 40 percent for a low back disability as of April 7, 2013 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 FINDINGS AND CONCLUSIONS The Veteran had active duty military service from October 1969 to September 1973. Entitlement to a disability rating in excess of 20 percent for a low back disability prior to April 7, 2013 Entitlement to a disability rating in excess of 40 percent for a low back disability as of April 7, 2013 The Veteran seeks an increased disability rating for his lumbar spine disability, which has been rated as 20 percent disabling prior to April 7, 2013, and as 40 percent disabling thereafter. Disabilities of the spine are rated under either the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS Formula). The General Rating Formula provides a 20 percent disability rating is assigned 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 disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The “pain must affect some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance,’” as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. This is because “pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss.” Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). At the VA examination in January 2009, the Veteran was noted to have suffered falls as a result of the severity of the radicular pain from his low back. (See C&P, 01/20/2009.) Range of motion testing showed forward flexion to 45 degrees, extension to 5 degrees, and bilateral rotation and flexion to 10 degrees each. The Veteran experienced tenderness to palpation and postural rigidity of the lumbosacral spine. The Veteran reported having pain flare-ups, which occurred as a result of daily activities such as bending, stooping, and weight-bearing for more than 10 minutes. At the VA examination in December 2009, the Veteran was noted to have had back surgery in 2007, which had lessened his back pain. (See C&P Exam, 12/02/2009.) He was still having dull back pain that was constant in nature and was aggravated by prolonged standing and walking. Range of motion testing showed flexion to 50 degrees with pain beginning at 30 degrees, extension to 10 degrees, rotation and flexion to 20 degrees bilaterally, with pain at the end points. He denied having any flare-ups of pain or other symptoms. At the VA examination in April 2013, the Veteran’s range of motion testing showed flexion to 25 degrees, with pain at 15 degrees, extension to 5 degrees, and lateral flexion and rotation to 10 degrees with pain at 5 degrees bilaterally. (See C&P, 04/03/2013.) He was able to walk for about one block or up to 10 minutes before needing to rest his back. He reported having pain flare-ups three or four days per month during which he stayed at home and rested his back, although he was able to complete the activities of daily living. At the Board hearing in May 2016, the Veteran testified that he experienced serious and constant levels of pain in his back and legs. (See Hearing Testimony, 05/10/2016.) He had problems sitting in the same position for very long but also had difficulty walking very far because both situations provoked back pain. This made it difficult for him to perform his job duties as a foreman on the jobsite. He needed to keep moving to keep his muscles from seizing up but was uncomfortable maintaining any position for any length of time. The Veteran was provided the opportunity for another VA examination in August 2018. (See C&P Exam, 08/17/2018.) At that examination, his range of motion could not be tested because of the level of his back pain and weakness. The Veteran reported that he had difficulty with bending at the waist, walking, or sitting for any length of time. He had mild tenderness to palpation over the paraspinous muscles, difficulty with forward flexion, and pain with weight-bearing. The examiner noted that the Veteran had intravertebral disc syndrome (IVDS) but had not been prescribed bed rest at any point in the preceding 12 months. The examiner noted that the Veteran tended to walk in a bent over position and used an electric scooter to get around most of the time. The Veteran was also afforded a VA examination in February 2020 at which he again was unable to engage in range of motion testing due to pain. (See C&P Exam, 02/25/2020.) He reported having daily back pain which prevented him from walking and resulted in him using an electric wheelchair for mobility. The Veteran denied having flare-ups of pain and there was no evidence of muscle spasm resulting in changes of gait or spinal contour. After reviewing the evidence of record, with special attention to the documents cited above, the Board finds that entitlement to increased disability ratings are not warranted for either time period on appeal. Specifically, prior to April 7, 2013, the Veteran’s range of motion was shown to exceed 30 degrees of flexion, the criteria for a 40 percent disability rating. The Board acknowledges that the December 2009 VA examination pain at 30 degrees of flexion; however, the fact that the Veteran still had 20 degrees of forward flexion beyond the onset of pain is evidence that a 20 percent disability rating is appropriate. Notably, at the time of the December 2009 VA examination, the Veteran denied experiencing pain flare-ups, thereby indicating that there was not a time when his range of motion would have been further restricted by pain. After April 7, 2013, the Veteran’s range of motion has included forward flexion to no more than 25 degrees, but ankylosis has not been shown. The Board acknowledges that the Veteran has been unable to perform range of motion testing at the 2018 and 2020 VA examinations; however, this does not equate to ankylosis or complete loss of motion of the lumbar spine. Rather, the evidence indicates that the Veteran uses a motorized wheelchair and, when able to walk a short distance, does so in a bent posture, indicating that he still has motion in lumbar spine, albeit severely restricted. The criteria for a disability rating in excess of 40 percent have not been met or more nearly approximated. The Board acknowledges that at least one VA examiner has diagnosed the Veteran as having IVDS. However, the evidence does not show that the Veteran has experienced any incapacitating episodes requiring treatment by a physician or prescribed bed rest. As such, the rating criteria for lumbar spine disability under IVDS based on incapacitating episodes are not applicable. For the reasons set forth above, the appeals for higher disability ratings are denied. 38 C.F.R. § 4.71a. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Cheryl E. Handy 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.