Citation Nr: 21010328 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 14-40 142 DATE: February 24, 2021 ORDER Prior to December 19, 2013, a rating in excess of 10 percent for a lumbar spine disability is denied. From December 19, 2013 to September 28, 2020, a 20 percent rating for a lumbar spine disability is granted. From September 29, 2020, a rating in excess of 40 percent for a lumbar spine disability is denied. FINDING OF FACT 1. Prior to December 19, 2013, the Veteran’s lumbar spine disability did not more nearly approximate: forward flexion limited to less than 60 degrees; a combined range of motion less than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. 2. Resolving reasonable doubt in the Veteran’s favor, from December 19, 2013 to September 28, 2020, the Veteran’s lumbar spine disability was manifested by forward flexion of the thoracolumbar spine limited to 60 degrees due to pain. 3. Since September 29, 2020, the Veteran’s lumbar spine disability was manifested by forward flexion of the thoracolumbar spine limited to 30 degrees but was not productive of unfavorable ankylosis of the entire thoracolumbar spine. CONCLUSION OF LAW 1. Prior to December 19, 2013, the criteria for a rating in excess of 10 percent for lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242 (2019). 2. From December 19, 2013, to September 28, 2020, the criteria for a 20 percent rating, but no higher, for a lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242 (2019). 3. From September 29, 2020, the criteria for a rating in excess of 40 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active naval service from September 2007 to July 2011. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a March 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2018 and June 2020, the Board remanded the appeal for further development. The Veteran seeks higher ratings for his lumbar spine disability, currently rated as 10 percent disabling from July 27, 2011, and 40 percent disabling from September 29, 2020. His disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242 (2019), for limitation of motion. The Schedule for Rating Criteria mandates that disabilities of the spine under DCs 5235 to 5243 will be evaluated under a General Rating Formula for Diseases and Injuries of the Spine. This General Rating Formula assigns disability ratings with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of the injury or disease. Under this formula, a 10 percent rating is warranted when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent of more of the height. A 20 percent rating is for assignment when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or with a combined range of motion (ROM) 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 when forward flexion of the thoracolumbar spine is 30 degrees; or less or for favorable ankylosis of the entire thoracolumbar spine. A maximum 50 percent disability rating is for assignment upon a showing of unfavorable ankylosis of the entire thoracolumbar spine. Turning to the evidence of record, the Veteran was afforded a VA back conditions examination in July 2012. The Veteran reported flare-ups and chronic low back pain with acutely worsening symptoms, despite medication and physical therapy. The VA examiner noted that the Veteran’s ROM measurements were: forward flexion limited to 90 degrees or greater; extension limited to 10 degrees; right lateral flexion limited to 30 degrees; left lateral flexion limited to 25 degrees; and right and left lateral rotation limited to 15 degrees. After repetitive use, the Veteran’s forward flexion was limited to 85 degrees and his extension was limited to 10 degrees. The VA examiner opined that the Veteran’s lumbar spine disability impacted his ability to work due to pain, but reported that he continued to be able to do physically demanding tasks (e.g., oil field maintenance, climbing ladders, and repairing machinery requiring movements in bent/crouched/perched positions). A November 2012 private treatment note indicated that the Veteran’s ROM measurements were: forward flexion limited to 90 degrees; extension limited to 30 degrees; right lateral flexion limited to 30 degrees; left lateral flexion limited to 45 degrees; right rotation limited to 25 degrees; and left rotation limited to 30 degrees. A December 2012 private treatment note indicated that the Veteran had full flexion, but limited extension, in his lumbar spine. In a December 2013 VA primary care note, the Veteran was noted as having forward flexion that was limited to 110 degrees with pain at 60 degrees. In a December 2015 VA primary care note, the Veteran was noted as having forward flexion limited to 90 degrees and extension limited to 20 degrees. In June 2016, the Veteran’s ROM was noted as being limited but no measurements were provided. In February 2019, the Veteran’s ROM measurements were: forward flexion limited to 90 degrees; extension limited to 30 degrees; left and right lateral flexion limited to 35 degrees; and left and right lateral rotation limited to 30 degrees. When moderate pain and stiffness were incorporated, the Veteran’s ROM measurements were: forward flexion limited to 75 degrees; extension limited to 15 degrees; left lateral flexion limited to 15 degrees; right lateral flexion limited to 20 degrees; and right and left lateral rotation limited to 20 degrees. At a November 2019 VA back conditions examination, the Veteran reported chronic back pain, soreness and stiffness. He described his flare-ups as dull aches that progressed into sharp pain during activities such as lifting, carrying, bending, or sitting for a prolonged period. The VA examiner noted that the Veteran’s ROM measurements were: forward flexion limited to 75 degrees; extension limited to 30 degrees; right and left lateral flexion limited to 20 degrees; and right and left lateral rotation limited to 30 degrees. The VA examiner found that the Veteran’s ROM itself contributed to functional loss due to pain. After repetitive use, the Veteran’s forward flexion was limited to 70 degrees and his bilateral lateral rotation was limited to 20 degrees after repetitive use. The VA examiner opined that the Veteran’s forward flexion would be limited to 65 degrees during flare-ups. The VA examiner also opined that the Veteran was unable to perform a job in physical labor due to chronic back pain, but that he was not limited from working in sedentary employment. In a November 2019 private treatment note, the Veteran’s ROM measurements were: flexion limited to 90 degrees; extension limited to 30 degrees; left and right lateral flexion limited to 35 degrees; left lateral rotation limited to 30 degrees; and right lateral rotation limited to 30. When moderate pain and stiffness were included, the Veteran’s ROM measurements were: forward flexion limited to 55 degrees; extension limited to 15 degrees; left lateral flexion limited to 30 degrees; right lateral flexion limited to 5 degrees; left lateral rotation limited to 20 degrees; and right lateral rotation limited to 10 degrees. A February 2020 private treatment note indicates that the Veteran had full flexion but limited extension in his lumbar spine. At a September 2020 VA back conditions examination, the Veteran reported that he had progressively worsening back pain that radiated to his lower extremities and was aggravated by repetitive use. He reported flare-ups that prevented him from doing activities that required full forward flexion. He was unable to sit or stand for prolonged periods or repeatedly bend. The VA examiner noted that the Veteran’s ROM measurements were: forward flexion limited to 30 degrees; extension limited to 15 degrees; bilateral lateral flexion limited to 20 degrees; and bilateral lateral rotation limited to 30 degrees. The VA examiner opined that the Veteran would be expected to have difficulty with any employment which could not accommodate his inability to sit or stand for prolonged periods. Prior to December 19, 2013, a rating in excess of 10 percent is denied. Prior to this date, there is no indication from the record that the Veteran’s lumbar spine disability manifested in flexion limited to 60 degrees or less, or a combined ROM limited to 120 degrees or less. In fact, at his July 2012 VA examination, the Veteran had flexion, at worst, limited to 85 degrees; and a combined ROM to, at worst, 180 degrees. Therefore, even with consideration of all pertinent disability factors, including pain, there remains no basis for an initial rating in excess of 10 percent for the Veteran’s lumbar spine disability prior to December 19, 2013. From December 19, 2013 to September 28, 2020, a 20 percent rating, but no higher, is granted. The Board finds that the Veteran is entitled to a rating of 20 percent for his lumbar spine disability from December 19, 2013, to September 28, 2020. In that regard, the Veteran was shown to have flexion that was limited to 110 degrees, but with evidence of pain at 60 degrees. As such, the Board finds that the Veteran’s flexion was limited to 60 degrees. The Board acknowledges that there is evidence against the finding of entitlement to a rating of 20 percent during that time. However, the Board notes that ROM measurements from February 2015 did not account for limitations due to pain, weakness, or fatigue. Additionally, the February 2019 and November 2019 ROM measurements were consistent with prior evidence that the Veteran had notable decreases in forward flexion due to pain. Therefore, the evidence of record more nearly approximates the criteria for a 20 percent rating from December 19, 2013 to September 28, 2020. However, there is no indication from the record that the Veteran had flexion limited to 30 degrees or less. In fact, during this time, the Veteran’s flexion, was, at its worst, limited to 55 degrees. As such, there is no reasonable basis for a rating in excess of 20 percent for the Veteran’s lumbar spine disability from December 19, 2013, to September 28, 2020. From September 29, 2020, a rating in excess of 40 percent is denied. Since this date, there is no evidence of ankylosis of the entire thoracolumbar spine. Accordingly, a rating in excess of 40 percent is not warranted for the Veteran’s lumbar spine disability beginning September 29, 2020. Additional Considerations Consideration has also been given to assigning a higher rating under another diagnostic code. However, there is no indication during the entire appeal that the Veteran has intervertebral disc syndrome. Therefore, the Veteran is appropriately rated under DC 5242, based on pain and limitation of motion. Further, at no point during the period on appeal has there been objective evidence of radiculopathy or other neurological abnormalities associated with the lumbar spine disability. Additionally, the ratings assigned for the back contemplate radiating pain, which the Board acknowledges that the Veteran has reported during the pendency of the appeal. Therefore, the Board finds that the evidence does not currently support the assignment of separate rating for neurological impairment in either lower extremity at this time. See DC 5242, Note 1. Finally, the Board has also considered a claim for total disability based on individual unemployability (TDIU), as a claim for increased compensation can encompass a claim for TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the evidence reflects that the Veteran is currently working. See November 2019 VA back conditions examination. Accordingly, the Board finds that entitlement to a TDIU has not been raised by the record. Roya Bahrami Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Byrd, 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.