Citation Nr: 21009069 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 10-12 358 DATE: February 18, 2021 ORDER Entitlement to an increased rating in excess of 20 percent for a low back disorder is denied. FINDINGS OF FACT 1. The Veteran's lumbar spine was limited, at worst, to 40 degrees of flexion. 2. The Veteran has a diagnosis of IVDS with no incapacitating episodes requiring physician-prescribed bedrest. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for a low back disorder 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 CONCLUSION The Veteran served on active duty for training from August 1961 to January 1962, from July 1965 to September 1965, and from June to July 1978. It is noted that a separate rating has been assigned for radiculopathy in the lower extremities secondary to the back disorder. That matter is not at issue, and the decision herein concerns the orthopedic manifestations of the back disorder. Entitlement to an increased rating in excess of 20 percent for a low back disorder Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, "staged" ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007).] The Veteran’s low back disorder was rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237-5243. 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. 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. VA outpatient treatment reports during the period on appeal show a history of back pain, stiffness, and limited motion but the motion is not measured in degrees. During a VA examination in September 2012, the Veteran reported low back and left leg pain following a jeep rollover accident during service. Upon examination, range of motion of the lumbar spine was as follows: 40 degrees of forward flexion; 5 degrees of extension; 5 degrees of bilateral bending; and 5 degrees of bilateral rotation. The Veteran was able to perform repetitive-use testing with three repetitions with no additional limitation of motion. There was guarding of the lumbar spine that resulted in abnormal gait. There was evidence of radicular pain to the left lower extremity. There was evidence of intervertebral disc syndrome (IVDS), but the Veteran reported having no incapacitating episodes in the past year. The Veteran appeared at a Board hearing in March 2016. He testified that his back disorder had worsened. In a November 2016 VA examination, the examiner noted diagnoses of spondylosis, displacement of lumbar intervertebral disc without myelopathy, and lumbago. The Veteran reported his lower back disorder was stable over time with flares and muscle spasms occurring 2 to 3 times daily. Range of motion testing showed flexion limited to 90 degrees, extension limited to 15 degrees, bilateral flexion limited to 20 degrees, and bilateral rotation limited to 25 degrees. Functional loss included limited movement involving the back. There was no objective evidence of localized tenderness or pain to palpation and no evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing with no additional loss in range. The examination is medically consistent with the Veteran's statements describing functional loss with repetitive use over time. The Veteran had muscle spasms, but they did not result in abnormal gait or abnormal spinal contour. Regarding its effect on employment, his back disability limits the time that he can stand, or the speed and distance that he can walk. The Veteran underwent a VA examination of the back in January 2019. The examiner noted a diagnosis of intervertebral disc syndrome with left lower radiculopathy. The Veteran reported pain and stiffness in the lower back that radiates down the left leg. Functional impairment does not allow the Veteran to stand straight ot stand or walk for a prolonged time. He also reported flare-ups, causing spasm and pain in the lower back. Range of motion testing showed flexion limited to 75 degrees, extension limited to 0 degrees, bilateral flexion limited to 10 degrees, and bilateral rotation limited to 20 degrees. The Veteran was unable to stand erect. There was no objective evidence of localized tenderness or pain to palpation and no evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing with no loss of coordination and no additional loss of range of motion. The Veteran had IVDS, but no episodes of physician-prescribed bed rest were noted. Regarding functional impact, the examiner noted the Veteran’s spine disorder precluded sitting or walking for a prolonged time. The Veteran was afforded a VA examination of his spine in March 2020. The examiner noted a diagnosis of low back disorder / intervertebral disc syndrome with left lower radiculopathy. The Veteran reported throbbing pain in the lower back that radiates down the left leg. He also reported weekly flare-ups, causing moderate pain that lasts several hours. Range of motion testing showed flexion limited to 60 degrees, extension limited to 5 degrees, bilateral flexion limited to 10 degrees, and bilateral rotation limited to 20 degrees. Pain was noted at the end of all ranges. There was no objective evidence of localized tenderness or pain to palpation and no evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing with pain, fatigue, and loss of endurance, but no loss of coordination and no additional loss of range of motion. The Veteran did not have IVDS or nerve root involvement. Regarding functional impact, the examiner noted the Veteran’s spine disorder precluded “laborious employment but did not preclude sedentary work.” (A total rating based on individual unemployability has been assigned since December 2011, along with a 100 percent schedular rating assigned as of September 2012.) Upon review of the record, the Board finds that the preponderance of the evidence is against finding that a rating in excess of 20 percent is warranted for the Veteran's low back disorder. At no point does the evidence show flexion less than 30 degrees. The Board has considered the Veteran's symptoms after repetitive movement and during flare ups. The record also shows a diagnosis of IVDS; however, there is no evidence of incapacitating episodes that would warrant a higher rating. The Board has considered the Veteran's lay statements regarding his symptoms and functional impairment. Based on the foregoing, the preponderance of the evidence is against the appellant’s claim for a rating in excess of 20 percent for his low back disorder. 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. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shana Z. Siesser, 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.