Citation Nr: 21009805 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 17-46 525 DATE: February 23, 2021 ORDER Entitlement to a rating in excess of 20 percent prior to July 2, 2018, for lumbar strain is denied. Entitlement to a rating in excess of 40 percent since July 2, 2018, for lumbar strain is denied. FINDINGS OF FACT 1. Prior to July 2, 2018, the Veteran’s lumbar strain has been productive of forward flexion to no worse than 75 degrees. 2. Since July 2, 2018, the Veteran’s lumbar strain has been productive of forward flexion to no worse than 20 degrees. CONCLUSIONS OF LAW 1. Prior to July 2, 2018, the criteria for a rating in excess of 20 percent for lumbar strain are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5237 (2019). 2. Since July 2, 2018, the criteria for a rating in excess of 40 percent for lumbar strain are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5237 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active air service from October 2002 to September 2014. These matters come before the Board of Veterans’ Appeals (Board) on appeal from July 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which continued a 10 percent rating for a lumbar spine disability. In a September 2018 rating decision, the RO increased the rating assigned for the lumbar spine disability and assigned a 20 percent rating effective March 30, 2017 (the date he filed his current claim for an increased rating for lumbar strain). In a December 2020 rating decision, the RO awarded a 40 percent rating for lumbar strain effective July 2, 2018. In that decision, the RO also awarded a separate rating for radiculopathy of the right lower extremity and assigned a 10 percent rating effective July 2, 2018. The Veteran has not disagreed with the rating or effective date assigned for the right lower extremity disability and that issue is not currently before the Board. The Board remanded the Veteran’s claims for additional development in November 2020. At that time the Board noted that the Veteran’s request for a hearing before the Board was withdrawn. Increased Rating – Lumbar Spine The Veteran contends that his lumbar spine disability warrants the maximum allowable rating. VA outpatient treatment reports reflect reports of back pain without radiation. The Veteran was prescribed a brace for his back in June 2017. The records do not include range of motion findings and sensory deficits were not noted. During a March 2018 VA examination, the Veteran reported that he had tight painful spasms of the lower middle back and intermittent back pain. He denied flare-ups of the thoracolumbar spine and he denied functional loss or functional impairment of the thoracolumbar spine. Range of motion testing revealed forward flexion to 75 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees. No abnormal range of motion contributed to a functional loss and there was no pain noted on examination. The Veteran was able to perform three repetitions of motion with no additional loss of range of motion after three repetitions. Pain, weakness, fatigability, and incoordination did not limit functional ability with repeated use over a period of time. The Veteran had guarding or muscle spasm of the thoracolumbar spine and muscle spasm resulted in abnormal gait or abnormal spine contour. There were no additional factors contributing to disability. Muscle strength testing, reflex examination, and sensory examination were all normal. Straight leg raising was negative for the left and right leg and there were no other signs or symptoms due to radiculopathy. There was no ankylosis of the spine and no neurologic abnormalities or findings related to the lumbar spine strain. X-rays of the lumbar spine did not reveal arthritis and the examiner indicated that the Veteran did not have intervertebral disc syndrome (IVDS) of the thoracolumbar spine. The examiner diagnosed the Veteran with lumbosacral strain. During a July 2018 VA examination, the Veteran reported that his back pain had worsened. He endorsed flare-ups of the thoracolumbar spine described as muscle spasm cramps and sharp pain with pain shooting down the right leg. The examiner indicated that range of motion testing could not be conducted due to pain and limited range of motion without ankylosis. Forward flexion was to 20 degrees and extension was to less than 5 degrees. Pain was noted on examination and with rest/non-movement. The examiner noted objective evidence of pain on passive range of motion and on non-weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. The examiner indicated that the Veteran was not able to perform repetitive-use testing due to pain. The examiner noted that the Veteran was not being examined after repeated use over time or during a flare-up. It was noted that pain would significantly limit functional ability with repeated use over time and during flare-ups and the examination was medically consistent with the Veteran’s statement describing functional loss during a flare-up. The Veteran had guarding or muscle spasm of the thoracolumbar spine which resulted in abnormal gait or abnormal spine contour. The examiner indicated that back pain interfered with sitting and standing. Muscle strength testing, reflex examination, and sensory examination were all normal. Straight leg raising was negative for the right and left leg. The Veteran had mild intermittent pain and paresthesias and/or dysesthesias of the right leg but no radiculopathy of the left leg. There was no ankylosis of the lumbar spine and no other neurologic abnormalities of the thoracolumbar spine. X-rays of the thoracolumbar spine did not reveal arthritis. However, the examiner assessed the Veteran with IVDS but noted that the diagnosis did not have any episodes of acute signs or symptoms due to IVDS that required bed rest prescribed by a physician during the past twelve months. The Veteran ambulated with the regular use of a brace and cane. The examiner diagnosed the Veteran with lumbosacral strain and intervertebral disc syndrome (sacroiliac injury was also diagnosed and has been separately rated and is not a subject of this appeal). In this case, review of the evidence indicates that for the period prior to July 2, 2018, at worst, forward flexion of the Veteran’s thoracolumbar spine was limited to 75 degrees and that the combined range of motion was limited to 225 degrees, which is consistent with a 10 percent rating under Diagnostic Code 5237. However, the Veteran had muscle spasm severe enough to result in an abnormal gait or abnormal spinal contour which is consistent with the currently assigned 20 percent rating under Diagnostic Code 5237. The evidence does not indicate that forward flexion was limited to 30 degrees or less, or that there was favorable ankylosis of the entire thoracolumbar spine. Furthermore, VA treatment records do not document any decreased function related to the lumbar spine disability. In terms of functional impairment, the Board does not find that forward flexion has been limited to 30 degrees or has been manifested by favorable ankylosis of the entire thoracolumbar spine. Therefore, a rating in excess of 20 percent is not warranted under Diagnostic Code 5237 prior to July 2, 2018. For the relevant period prior to July 2, 2018, the Board notes that the Veteran does not have a diagnosis of IVDS per diagnostic imaging; therefore, the Formula for Rating IVDS Based on Incapacitating Episodes is not applicable. Regarding radiculopathy, the Board notes that the Veteran did not have any signs or symptoms of radiculopathy either during VA treatment or at the VA examination in March 2018. Furthermore, there has been no objective evidence of any functional impairment affecting the lower extremities. Muscle strength testing, reflex examinations, and sensory examinations were all normal at the March 2018 VA examination and straight leg raising tests were also negative. Therefore, the Board finds that a separate compensable rating for radicular symptoms is not warranted prior to July 2, 2018. Finally, the Board has considered the effects of repeated use over time and flare-ups in light of the Court’s holdings in Correia and Sharp. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this case, the evidence indicates that the Veteran had no report of pain on VA examination in March 2018. The Veteran was able to perform three repetitions of motion with no additional loss of range of motion after three repetitions. Pain, weakness, fatigability, and incoordination did not limit functional ability with repeated use over a period of time and the Veteran denied flare-ups. Moreover, the Veteran has not described any functional loss that would be consistent with a rating in excess of 20 percent prior to July 2, 2018. As such, the Board finds that the Veteran’s symptomatology is consistent with a 20 percent rating prior to July 2, 2018, and a higher rating is not warranted. In this case, review of the evidence indicates that for the period since July 2, 2018, at worst, forward flexion of the Veteran’s thoracolumbar spine was limited to 20 degrees with no ankylosis, which is consistent with a 40 percent rating under Diagnostic Code 5237. The evidence does not indicate that there was unfavorable ankylosis of the entire thoracolumbar spine. Furthermore, VA treatment records do not document any decreased function related to the lumbar spine disability. Therefore, although there is evidence of painful motion, in terms of functional impairment, the Board does not find that unfavorable ankylosis of the entire thoracolumbar spine has been shown. Therefore, a rating in excess of 40 percent is not warranted under Diagnostic Code 5237 since July 2, 2018. For the relevant period since July 2, 2018, the Board notes that while X-rays of the lumbar spine were normal at the July 2018 VA examination, the Veteran was nonetheless diagnosed with IVDS. However, the examiner indicated that the Veteran did not have any episodes of acute signs or symptoms due to IVDS that required bed rest prescribed by a physician during the past twelve months; therefore, the Formula for Rating IVDS Based on Incapacitating Episodes is not applicable. Regarding radiculopathy, as noted, the Veteran has been awarded a separate rating for radiculopathy of the right lower extremity based upon the findings of the July 2018 VA examination and that extremity will not be addressed. However, there has been no objective evidence of any functional impairment affecting the left lower extremity. Muscle strength testing, reflex examination, and sensory examination were all normal for the left lower extremity at the July 2018 VA examination and straight leg raising test was also negative. Therefore, the Board finds that a separate compensable rating for radicular symptoms of the left lower extremity is not warranted. Finally, the Board has considered the effects of repeated use over time and flare-ups in light of the Court’s holdings in Correia and Sharp. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this case, the evidence indicates that the Veteran had a report of pain on VA examination and was unable to perform three repetitions of motion. Moreover, the examiner noted objective evidence of pain on passive range of motion and on non-weight bearing and stated that the Veteran would have muscle spasm cramps and sharp pain with pain shooting down the right leg during flare-ups. The Veteran also endorsed problems with standing and sitting. However, the Veteran has not described any functional loss that would be consistent with ankylosis of the thoracolumbar spine to warrant a rating in excess of 40 percent since July 2, 2018. As such, the Board finds that the Veteran’s symptomatology is consistent with a 40 percent rating since July 2, 2018, and a higher rating is not warranted. In sum, a rating in excess of 20 percent prior to July 2, 2018, and a rating in excess of 40 percent since that date is not warranted for the lumbar spine strain. 38 C.F.R. § 4.71, Diagnostic Code 5237. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Cryan, 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.