Citation Nr: 21008701 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 14-34 715A DATE: February 17, 2021 ORDER Entitlement to a disability evaluation in excess of 20 percent for a low back disability is denied. FINDING OF FACT At no point during the appeal period has the Veteran’s lumbar disability been manifested by limitation of forward flexion beyond 60 degrees, even when considering functional loss due to repetitive use over time or during flareups, nor is there evidence of ankylosis of the spine. CONCLUSION OF LAW The criteria for entitlement to a disability evaluation in excess of 20 percent for a low back disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5242-43. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 2008 to April 2012. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in October 2018, at which time the Board denied entitlement to an evaluation in excess of 20 percent for low back strain. The Veteran appealed that decision to the Court of Appeals for Veterans’ Claims (Court), which, pursuant to a Joint Motion for Partial Remand (JMPR), vacated the Board’s judgment and returned the matter to the Board. The Board then remanded the matter in November 2019 for additional development. The matter has been returned to the Board for appellate review. The claimant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to a disability evaluation in excess of 20 percent for a low back disability Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Back disabilities are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), specified in 38 C.F.R. § 4.71a. If there is intervertebral disc disease, the rating criteria specified in the Formula for Rating Intervertebral Disk Syndrome (IVDS) Based on Incapacitating Episodes may be applicable.   The General Rating Formula provides for a 20 percent rating where there is 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 is not greater than 120 degrees, or there is 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 evaluation is warranted for favorable ankylosis of the entire thoracolumbar spine or forward flexion of the thoracolumbar spine of 30 degrees or less. The only criterion which warrants an evaluation in excess of 40 percent for limitation of motion of the thoracolumbar spine is where there is unfavorable ankylosis of the thoracic spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating, and unfavorable ankyloses of the entire spine warrants a 100 percent rating.  For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  Back disability is, as noted above, rated on limitation of motion, or may be rated based on subjective complaints of pain, if there is objective confirmation of arthritis on radiologic examination. DCs 5003, 5010. A 10 percent evaluation is the maximum schedular evaluation available for arthritis of one joint or group of joints under DCs 5003 or 5010, so application of these DCs would not result in a more favorable evaluation for the Veteran. Moreover, the record shows the Veteran underwent diagnostic imaging on several occasions during the appeal period, including at least as recently as November 2019, with no evidence of any arthritic process affecting the lumbar spine. In fact, November 2019 x-rays of the Veteran’s lumbar spine were characterized as “unremarkable.” Accordingly, no further discussion of these DCs is required in this matter. When evaluating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates additional functional loss due to pain, pursuant to 38 C.F.R. §§ 4.40 and 4.45. The diagnostic codes pertaining to range of motion do not subsume §§ 4.40 and 4.45. The rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  The Board notes that effective February 7, 2021, the spine regulations were amended to state that Diagnostic Code 5243 governing Intervertebral disc syndrome should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root; and that Diagnostic Code 5242 should apply to all other disc diagnoses. See 85 Fed. Reg. 76462 (Nov. 30, 2020) (effective 2/7/2021). However, the Board notes that this change does not impact the evaluation in this case as the Veteran does not have any evidence of an IVDS diagnosis, and the same has been ruled out by those VA examiners with whom the Veteran has met over the course of the appeal period. As such, the provisions applicable to IVDS need not be further addressed. The Veteran’s low back condition has been evaluated as 20 percent disabling based on limitation of motion. The record reveals consistent complaints of low back pain throughout the appeal period, with treatment including periodic use of pain medication, physical therapy, and the use of a lumbar brace. VA treatment records from the early portion of the appeal period also reflect a degree of lost range of motion; for instance, May 2014 VA treatment records show low back pain with what providers characterized as a degree of “hypomobility,” and pain on range of motion testing. These records, however, do not demonstrate loss of range of motion approaching that degree required for even the minimum disability evaluation based on lost range of motion under the General Formula summarized above. The Veteran has been afforded several VA examinations over the course of the appeal period. The first, conducted in February 2013, showed essentially normal lumbar range of motion, with no loss of range of motion following multiple bouts of testing, no evidence of functional loss under any conditions, no tenderness to palpation, full lower extremity muscle strength, normal sensory testing, and bilaterally negative straight leg raise testing. By June 2017, however, the Veteran demonstrated a degree of lost range of motion and apparently worsening symptoms, with VA testing conducted that month showing forward flexion limited to 70 degrees, extension to 20, right and left lateral flexion to 30, and right and left lateral rotation to 30, with pain on testing rising to such a level as to cause functional loss. There was no lost range of motion with repeated bouts of testing, nor pain with weight bearing. The Veteran demonstrated low back spasm, but not to such a level as to cause abnormal gait or spinal contour, and there was no evidence of guarding. Straight leg raise testing was negative bilaterally, and sensory and reflex testing was normal. A final VA examination was conducted in February 2020, where forward flexion was limited to 80 degrees, extension to 20, and right and left lateral flexion and rotation to 30 each. The Veteran complained of pain on all maneuvers, but the examiner indicated that pain did not rise to such a level as to cause functional loss. There was a degree of additional lost range of motion on repeated bouts of testing, with forward flexion further limited to 70 degrees, and right and left lateral flexion and rotation limited to 25 degrees each. There was no evidence of pain with weight bearing, no pain with non-weight bearing, no atrophy, and no guarding or spasm present. Straight leg raise testing was negative bilaterally, sensory testing was normal, and there was no evidence of radicular symptoms. The Veteran evinced some pain on passive range of motion, and the examiner indicated that a degree of functional loss, due to weakness and pain, would be expected with repetitive use over time, or during flareups. With respect to the former, the examiner indicated the degree of loss would be reflected in that degree of loss shown after repeated bouts of testing on examination, namely, with forward flexion limited to 70 degrees, while during flareups, the loss would be greater, with forward flexion limited to 60 degrees, extension to 15, and right and left lateral flexion and rotation to 20 each. A review of this evidence convinces the Board that a higher rating is not warranted for any portion of the period on appeal. Critically, the Veteran’s range of motion in forward flexion has never been shown to be limited beyond 70 degrees, thus a higher rating under Diagnostic Code 5237 is not assignable as such would require limitation of forward flexion to 30 degrees or less. Additionally, the evidence does not show ankylosis, thus, a higher rating is not warranted on this basis either. 38 C.F.R. § 4.71a, Diagnostic Code 5237. With regard to additional compensation for functional loss, the Board finds that the 20 percent already assigned adequately compensates the Veteran for her painful motion and weakness. The VA examiner with whom she met in February 2020 confirmed that even during flareups, flexion would not be expected to be limited beyond 60 degrees, which value, the Board notes, is the highest associated with the already-assigned 20 percent evaluation for a lumbar condition based on limitation of motion. In other words, even when considering additional functional loss due to flareups or repeated use of the joint over time, there is no evidence that the Veteran’s loss of range of motion would approach the 30 degrees or less of forward flexion contemplated by a 40 percent evaluation. The other criteria associated with a 20 percent evaluation are not present in the Veteran’s case; for instance, despite a single finding of muscle spasm in the record, there has never been evidence of guarding or spasm so severe as to cause abnormal gait or spinal contour. Thus, in sum, while the Board has considered additional functional loss due to flareups or repeated use of the low back over time, and notes that consideration of those factors already forms the basis for the assignment of the current 20 percent evaluation in this case, given that absent that consideration there has been no showing of limitation to range of motion even to the degree contemplated by a 20 percent evaluation. As a result, there remains no basis for assignment of a higher rating due to functional loss. Accordingly, the claim for a rating greater than 20 percent for a low back disability is denied. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Sahraie, 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.