Citation Nr: 21009966 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 18-23 880 DATE: February 23, 2021 ORDER Entitlement to a rating greater than 20 percent for lumbosacral strain with suspected spondylosis/interarticularis is denied. FINDING OF FACT Throughout the rating period on appeal, the Veteran’s service-connected lumbosacral strain with suspected spondylosis/interarticularis, is manifested by forward flexion to greater than 30 degrees but not greater than 60 degrees, even when considering functional loss due to pain, no ankylosis, and no incapacitating episodes. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for lumbosacral strain with suspected spondylosis/interarticularis have not been met. 38 U.S.C. § 1110, 1155, 5107 (2012); 38 C.F.R. § 4.1, 4.3, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1967 to June 1970. By way of background, the Veteran was granted entitlement to service connection for lumbosacral strain, and a 20 percent rating was assigned in September 2014. In February 2016, the Veteran filed a claim seeking an increased rating for his lumbosacral spine disability. In an April 2016 rating decision, the RO reduced the Veteran’s disability rating from 20 percent to 10 percent. This appeal was previously before the Board in July 2020. The Board restored the Veteran’s 20 percent rating and remanded the claim for a disability rating greater than 20 percent in order to obtain an adequate VA examination in July 2020. The Board notes the Veteran submitted a motion for reconsideration in August 2020 for a disability rating greater than 20 percent. As this issue was remanded in July 2020 there was not yet a final decision for the Board to reconsider. The motion was dismissed in February 2021. The Board has considered the Veteran’s claims and decided entitlement based on the evidence of record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Pertinent Criteria Disabilities of the spine, including lumbosacral strain (Diagnostic Code 5237), are rated under the General Rating Formula for Diseases and Injuries of the Spine 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. 38 C.F.R. § 4.71a. The General Rating Formula for Diseases and Injuries of the Spine provides that 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. 38 C.F.R. § 4.71a, Code 5237. 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. Id. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Normal ranges of motion of the thoracolumbar spine are flexion from 0 degrees to 90 degrees, extension from 0 degrees to 30 degrees, lateral flexion 0 degrees to 30 degrees bilaterally, and lateral rotation from 0 degrees to 30 degrees bilaterally. 38 C.F.R. § 4.71, Plate V; see also 38 C.F.R. § 4.71, General Rating Formula for Diseases and Injuries of the Spine, Note 2. Under the Formula for Rating intravertebral disc syndrome (IVDS) based on incapacitating episodes, a 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating requires incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Code 5243. Legal Criteria In order for the Veteran to be entitled to a higher than 20 percent rating for his service-connected lumbosacral strain under the General Formula for Rating Diseases and Injuries of the Spine, there must be forward flexion of the thoracolumbar spine of 30 degrees or less or the functional equivalent thereof; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71, Diagnostic Code 5237. In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the Veteran’s ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board notes that the U.S. Court of Appeals for Veterans Claims (Court) recently held the mere lack of an opportunity for a VA examiner to observe a flare-up of a service-connected condition is an insufficient basis for not estimating the flare-up’s functional effects. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Court held that, for a joint examination to be adequate, the examiner “must express an opinion on whether pain could significantly limit” a Veteran’s functional ability, and that determination “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” Id. The Court stated that the examiner must “obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the Veterans themselves.” Id. at 34. The examiner must also “offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of Veterans,” and the examiner’s determination should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. Id. After a thorough review of the record, the Board finds VA examiner complied with Sharp by providing range of motion estimates relevant to flare-ups, providing an opinion on whether pain could significantly limit the Veteran’s functional ability, and addressed the Veteran’s statements pertaining to the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment resulting from flare-ups. The Board has also considered the Court’s recent holding in Correia v. McDonald, 28 Vet. App. 158 (2016), in which the proper interpretation of the final sentence of 38 C.F.R. § 4.59 was addressed. In this regard, the Court concluded that VA examinations should include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Discussion In January 2016 an x-ray showed mild multilevel spondylosis in the lower thoracic spine where there is mild osteophytosis. See Medical Treatment Record received February 2016. The Veteran also reported chronic non-radiating back pain. See CAPRI received March 2016. The Veteran’s records also reflect a restricted range of motion and use of a back brace in October 2017. See CAPRI received December 2017. At his November 2020 VA examination, the Veteran reported experiencing worsening low back pain with grinding and shooting pain/inflammation in the lower back. The Veteran reports that the pain radiates to the right lower extremity associate with a numbness and tingling sensation. The Veteran also reports flare-ups daily that include locking and stiffness and difficulty getting out of bed. The Veteran further reports remarkable limping due to his knee problems, needing a cane or brace, flare-ups ranging from 9-10 in pain, and occasional locking caused by turning in a chair. See Correspondence received August 2020. The VA examiner acknowledges the Veteran’s flare-ups and functional impairment pertaining to his thoracolumbar spine. The Veteran’s range of motion during the examination revealed forward flexion of the thoracolumbar spine to 55 degrees, and objective pain was noted but did not result in or cause functional loss. The examiner notes evidence of pain with weight bearing and non-weight bearing. The examiner further notes objective evidence of localized tenderness in the lower back. The Veteran’s range of motion after repetitive use resulted in a forward flexion of the thoracolumbar spine to 45 degrees, with functional loss resulting from the pain. Although the examination was not conducted during a flare-up, the examiner notes limited functional ability with flare-ups, estimating a forward flexion of the thoracolumbar spine to 45 degrees. The VA examiner states the Veteran’s symptoms have worsened, but there is no change in his diagnosis. The VA examination included findings referable to range of motion testing after repetitive motions. With regard to conducting such testing with the range of the opposite undamaged joint, the record reflects that the Veteran’s thoracolumbar range of motion was tested at the examination; however, as there is no opposing undamaged joint, it is not possible to test that aspect. The VA examiner noted evidence of pain when the spine is weight bearing and non-weight bearing. The VA examiner did not perform a passive range of motion test, indicating it would not be feasible to do so in a safe and reasonable manner. The Board finds, however, that the active motion testing conducted during the VA examination in this case affords an accurate measurement of the most limited range of motion of the Veteran’s thoracolumbar spine disability, as passive range of motion testing tends to yield a less restrictive range of motion. While there is no disputing that the Veteran experiences thoracolumbar spine pain to varying degrees as is evident in the examination report outlined above, as well as in VA and private medical records on file from 2015 to 2020, he has not been shown to have functional loss equivalent to the criteria for a 40 percent rating requiring limitation on forward flexion to 30 degrees or less during the appeal period. This is based on his reports of functional loss, his demonstrated range of motion findings, and the assessments of functional loss by the VA examiners. DeLuca v. Brown, 8 Vet. App. 202 (1995). As to ankylosis, the November 2020 examiner noted that the Veteran did not have ankylosis. Separate ratings for associated objective neurologic abnormalities or chronic neurologic manifestations are not warranted because neurologic findings and symptoms warranting separate ratings have not been demonstrated. Outside of the Veteran’s right lower extremity radiculopathy, which is evaluated separately, neurological findings at the November 2020 VA examination was unremarkable. In the absence of any quantifiable neurologic impairment, there is no basis to rate such a condition. The Board has considered other appropriate Codes, particularly Code 5243 for Intervertebral Disc Syndrome (IVDS). However, there is no evidence, either lay or medical, of incapacitating episodes as contemplated by the regulation. Rather the November 2020 VA examiner found that the Veteran did not have incapacitating episodes due to IVDS over the past 12 months. Accordingly, the Board finds that a higher rating under the Formula for Rating IVDS Based on Incapacitating Episodes is not warranted. The Board further concludes that there is no basis for staged ratings of the Veteran’s lumbar strain, as his symptoms were primarily the same throughout the appeal period. Thus, for the foregoing reasons, the Board finds that a rating greater than 20 percent for the Veteran’s lumbosacral strain with suspected spondylosis/interarticularis, is not warranted. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). The Board is grateful for the Veteran’s honorable service. However, given the record before it, the Board finds that the evidence does not reach the level of equipoise regarding a disability rating greater than 20 percent for his service-connected lumbosacral strain with suspected spondylosis/interarticularis. See 38 U.S.C. § 5107(a) (“[A] claimant has the responsibility to present and support a claim for benefits....”); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to “present and support a claim for benefits” and noting that the benefit of the doubt standard in section 5107 (b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107 (a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA’s duty to assist, and recognizing that “[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107 (b),” requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Townsend, Associate 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.