Citation Nr: 21010027 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 13-35 133 DATE: February 23, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for low back strain is denied. FINDING OF FACT Throughout the course of this appeal, the Veteran’s thoracolumbar spine disability is characterized by pain and limitation of flexion between 30 and 60 degrees, including during flare-ups. Forward flexion of the thoracolumbar spine to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, are not present. CONCLUSION OF LAW The criteria for an initial rating in excess of 20 percent for low back strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from December 2007 to November 2008. This appeal was remanded by the Board in July 2020. The Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, a new VA opinion was obtained, which the Board finds adequate for adjudication purposes. After the required development was completed, this issue was readjudicated and the Veteran was sent a supplemental statement of the case in October 2020. Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. Finally, the Board notes that this appeal has been evaluated in accordance with the newly enacted amendments to 38 CFR 4.71a., effective February 7, 2021. Entitlement to an initial rating in excess of 20 percent for low back strain In a January 2012 Rating Decision, the AOJ granted service connection for lumbar strain with an evaluation of 0 percent, effective May 20, 2010, the date the Veteran’s service connection claim was received. The Veteran filed a timely appeal, citing his constant pain, discomfort, and diminished quality of life. After two remands, in a Rating Decision dated October 2020, the Veteran’s initial rating was increased to 20 percent. As this grant does not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Based on the evidence of record, an initial rating in excess of 20 percent is not warranted. The next-higher 40 percent evaluation is warranted when the evidence shows forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. Veterans diagnosed with intervertebral syndrome (IVDS) may also be evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes. However, this diagnostic code is only to be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root. Under this formula, a 20 percent evaluation is warranted when a veteran has incapacitating episodes having a total duration of a least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is warranted when a veteran has incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. An “incapacitating episode” is “a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.” 38 C.F.R. § 4.71a, DCs 5243, Note 1. Ankylosis is the “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). Based on the evidence of record, a rating in excess of 20 percent is not warranted for the period on appeal. As an initial matter, neurological symptoms were not recorded at any point in the appeal. Also, the Veteran did not have IVDS, and ankylosis was not shown. Further, at no point was the Veteran’s range of motion shown to be 30 degrees or fewer. Accordingly, the requirements for the next higher 40 percent rating for a thoracolumbar spine disability have not been met. First, at the Veteran’s October 2011 C&P examination, he reported needing weekly chiropractor sessions to maintain his daily routines and quality of life. Full ranges of motion were measured, with no objective evidence of pain on motion. Indeed, the Veteran was able to run five miles, thrice a week. At this examination, the Veteran reported flare-ups up to three times a week, precipitated by yardwork and prolonged sitting causing stiffness and 4/10 pain lasting for hours. The Veteran could not sit for more than three hours, and had rare sleep disturbance. Nonetheless, the Veteran’s range of motion measurements are so far in excess of the 30 percent limitation of forward flexion, that it is virtually impossible for him to have met the requirements for a 40 percent rating at this point. Next, at the Veteran’s March 2018 C&P examination, pain was noted in extension and right lateral rotation, and on weight-bearing, but did not result in loss of forward flexion. The Veteran reported flare-ups of pain once every two weeks, lasting two hours with an intensity of 4/10. The Veteran demonstrated forward flexion of 90 degrees. The examiner reported being unable estimate the Veteran’s range of motion loss in degrees due to flare-ups, citing “inadequate information to evaluate such with any degree of certainty.” Accordingly, a remand was afforded. Subsequently, at the Veteran’s December 2019 C&P examination, pain was noted in all ranges of motion, and on weight-bearing, but did not result in functional loss of forward flexion. The Veteran reported low back pain, made worse by pushing his lawn mower for 15 minutes. The Veteran had increased pain between the shoulder-blades, but competent medical evidence noted that this was a separate disability due to a recent, work-related accident. He experienced flare-ups with physical activity, such as cleaning the garage. The December 2019 C&P examiner specified that after review of all available medical treatment records and examinations, lay history and exams, and radiologic evidence, he could not provide a specific number of degrees of loss of range of motion during flare-ups. A rationale for this conclusion was not specified. In addition, the examiner found evidence of pain with weight bearing, but did not specify if there was any resulting loss of range of motion. Thus, the March 2018 and December 2019 C&P examinations were inadequate to assess the state of the Veteran’s disability. See Barr v. Nicholson 21 Vet. App. 303 (2007). Fortunately, an adequate October 2020 C&P examination is of record. At this examination, the Veteran reported routine swelling and spasms. Forward flexion was measured at 80 degrees. Pain functional loss in all ranges of motion was noted. Minor, spontaneous, flare-ups were observed twice to thrice a week, and severe once a month, lasting a couple hours to a day. Difficulty standing more than an hour resulted. The October 2020 C&P examiner concluded that pain significantly limits the Veteran’s functional ability during flare ups, and estimated the resulting functional loss at 70 degrees. These symptoms suffice to entitle the Veteran to a 20 percent rating based on limited range of motion. To be awarded the next highest 40 percent rating for thoracolumbar range of motion, these flare-ups would have to limit the Veteran’s range of motion to 30 degrees forward flexion, 30 degrees farther than his initial range of motion. However, the October 2020 C&P examiner’s estimate depicted a 70 degree limitation of forward flexion due to back flare-ups. Moreover, the Veteran endorsed full muscle strength, no atrophy, normal reflexes and sensation to light touch, and no ankylosis. He also mentioned interference with sitting and standing. However, based on the Veteran’s observable range of motion and his statements, the Board finds it unlikely that flare-ups limited the Veteran’s range of motion, such that the next higher rating is for contemplation. The presence of a measurable range of motion throughout the appeal period precludes a finding of ankylosis, which, absent a limitation of flexion to 30 degrees, is necessary for the next highest rating in excess of 20 percent. Further, there is no evidence of record that the Veteran was diagnosed with IVDS during the appeal and, in any event, disc herniation with compression and/or irritation of the adjacent nerve root was not found, and the Veteran was not prescribed periods of bedrest at any point. Accordingly, the Board concludes that a rating in excess of 20 percent for the Veteran’s lumbosacral spine disability is not warranted. In considering the appropriate disability rating, the Board has also considered the statements from the Veteran that his service-connected back disability is worse than the rating he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his right shoulder disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ( although interest may affect the credibility of testimony, it does not affect competency to testify ). On the other hand, such competent evidence concerning the nature and extent of the Veteran's disabilities have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Therefore, a rating in excess of 20 percent is not warranted. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Maskatia