Citation Nr: 21011427 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 12-20 832 DATE: March 1, 2021 ORDER Entitlement to an increased disability rating greater than 20 percent for service-connected low back strain is denied. FINDING OF FACT The Veteran’s low back strain is manifested by pain, arthritis, limitation of motion, excess fatigability, and muscle spasms, but without evidence of forward flexion being limited to 30 degrees or less; no ankylosis; no incapacitating episodes; and no other neurological abnormalities (other than the separately rated radiculopathy of the left lower extremity). CONCLUSION OF LAW The criteria for a 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, 4.71a, Diagnostic Codes 5237, 5242 (2020); Diagnostic Code 5242, 85 Fed. Reg. 76,453 (November 30, 2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1999 to October 2002. This case has a lengthy procedural history and came to the Board of Veterans’ Appeals (Board) on appeal from an Agency of Original Jurisdiction (AOJ) decision dated in September 2011. This case was remanded to the AOJ in January 2015 for additional development, and was subsequently returned to the Board. In a September 2017 decision, in pertinent part, the Board denied an increased rating for low back strain. The Veteran then appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2018 Joint Motion for Partial Remand (Joint Motion), the Court, the parties (the Veteran and the Secretary of VA) requested that the Board decision be vacated only as to this issue and the issue remanded. In a May 2018 order, the Court granted the Joint Motion and remanded the claims for action consistent with the terms of the Joint Motion. The appeal as to the remaining issues was dismissed. The Board remanded the issue to the AOJ in September 2018 for additional development pursuant to the Joint Motion. In an August 2019 rating decision, the AOJ granted a 20 percent disability rating for low back strain from November 22, 2010, the date of claim. The Board remanded the issue to the AOJ in August 2020; it is once again before the Board. 1. Entitlement to an increased rating for low back strain The Veteran contends that he is entitled to a higher rating for low back strain because he has constant back pain, and he can no longer exercise or stand for long periods due to pain and spasms. See Veteran’s March 2012 statement. In July 2014 he contended that he had hourly back spasms. In May 2020, his representative asserted that he has ongoing worsening symptoms of incapacitation, attacks of pain, limitation of motion, functional loss due to weakness, fatigability, incoordination or pain on movement, limitation of motion due to pain on use, including use during flare-ups, and his ranges of motion have deteriorated. The representative contended that he has marked interference with his daily activities, and presents significant deficits with activities of daily living. In February 2021, his representative asserted that his low back strain more nearly approximates the criteria for a higher rating. The current appeal arises from the Veteran’s November 2010 claim for an increased rating for the service-connected low back strain. Throughout the rating period on appeal, the AOJ has rated the Veteran's low back strain as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5237, pertaining to lumbosacral strain. Although the September 2020 VA examiner did not diagnose arthritis of the thoracolumbar spine, the June 2019 VA examiner diagnosed degenerative arthritis of the thoracolumbar spine. Accordingly, the service-connected low back disability is more appropriately rated under Diagnostic Code 5242. However, both Diagnostic Codes 5237 and 5242 are rated under the General Rating Formula for Diseases and Injuries of the Spine. During the pendency of the current appeal, effective February 7, 2021, VA revised the criteria for rating certain musculoskeletal disabilities. See 85 Fed. Reg. 76,453 (November 30, 2020). However, the General Rating Formula for Diseases and Injuries of the Spine, which applies to Diagnostic Codes 5235-5243 unless 5243 is rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, was not revised. The only spine rating criteria affected by these revisions are Diagnostic Codes 5242 (pertaining to degenerative arthritis of the spine), and Diagnostic Code 5243 (pertaining to IVDS). The revised rating criteria of Diagnostic Codes 5242-5243, as in effect from February 7, 2021, now provide that degenerative arthritis and degenerative disc disease other than IVDS are rated under Diagnostic Code 5242, while Diagnostic Code 5243 is assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Diagnostic Code 5242 is assigned for all other disc diagnoses. 85 Fed. Reg. 76,453 (November 30, 2020). Under both the former and revised rating criteria, IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2020); 85 Fed. Reg. 76,453 (November 30, 2020). Since the evidence shows that the Veteran does not have IVDS or disc herniation with compression and/or irritation of the adjacent nerve root, neither version of Diagnostic Code 5243 is applicable in this case. Neither version of Diagnostic Code 5242 is more favorable to the Veteran, as under each version, the low back disability is rated under the General Rating Formula for Diseases and Injuries of the Spine, which provides that a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion 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 or more of the height. 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. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. 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 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. In the May 2018 Joint Motion, the parties agreed that a January 2011 VA examination was inadequate as the examiner did not estimate the degree of functional loss during flare-ups, and that remand was warranted for a new examination report or medical opinion that adequately addresses the functional loss that the Veteran experiences during flare-ups, consistent with the Court’s holdings in Sharp, Mitchell, and DeLuca. The parties also stated that the examiner should be asked to opine, if possible, on the degree of functional loss that the Veteran experienced during the flare-ups that he described during the January 2011 examination. Additionally, the parties noted that the Veteran has alleged that his back pain has resulted in sleep disturbance in a December 2013 VA examination, and a March 2, 2015 private treatment record, and stated that the Board should consider this symptomatology pursuant to the provision of 38 C.F.R. § 3.321, governing the availability of extraschedular disability ratings. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for low back strain. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, spasms, weakened movement, excess fatigability, repetitive use, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he had limitation of motion during a flare-up for which he worked out the upper back (on VA examination in January 2011), flare-ups with pain, limitation of motion, fatigue, stiffness, spasms, and discomfort while sleeping (on VA examination August 2015), and flare-ups during cold weather, activity, and in the mornings (on VA examination in September 2020), would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Moreover, the Veteran denied having flare-ups of his low back strain on VA examinations in June 2013, December 2013, March 2019, and June 2019. In response to the instructions in the Joint Motion, an August 2019 VA medical opinion was obtained in which a VA examiner opined that based on a review of the medical records, at the time of the January 2011 VA examination, the Veteran had mild L5-S1 spondylosis, and estimated the range of motion loss or functional loss that the Veteran may have experienced during flare-ups and repetitive motion as follows for both repetitive motion and flare-ups: forward flexion limited to 50 degrees, extension to 20 degrees, and right and left lateral flexion and rotation to 15 degrees. Throughout the rating period on appeal, forward flexion was limited to no worse than 50 degrees, even with consideration of additional functional loss from pain and after repetitive use. On VA examination in January 2011, forward flexion of the thoracolumbar spine was to 65 degrees, with pain at 65 degrees. On VA examination in June 2013, forward flexion of the thoracolumbar spine was to 90 degrees, with no objective evidence of painful motion. On VA examination in December 2013, forward flexion of the thoracolumbar spine was to 80 degrees, with objective evidence of painful motion beginning at 80 degrees. On private spine examination in January 2015, the Veteran was able to bend and touch his shins on lumbar flexion, and had no difficulty with lumbar extension. On VA examination in August 2015, forward flexion of the thoracolumbar spine was to 65 degrees, with objective evidence of painful motion beginning at 30 degrees. On VA examination in March 2019, forward flexion of the thoracolumbar spine was to 90 degrees, with pain on forward flexion, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation (but not on extension). Although the examiner indicated that pain was noted on examination and caused functional loss, the examiner did not specify the functional loss. On VA examination in June 2019, forward flexion of the thoracolumbar spine was to 80 degrees, and the examiner opined that truncal obesity prevented full flexion by about 5 degrees. There was pain on forward flexion, extension, and right and left lateral rotation. Although the examiner indicated that pain was noted on examination and caused functional loss, the examiner did not specify the functional loss. In a July 2019 addendum, the examiner noted that the Veteran did not complain of flare-ups, and described his pain as chronic, constant and daily. The examiner stated that due to the current use of cocaine and cannabis, symptoms of pain as limiting functional status would be inaccurate due to their effect on pain receptors and the central nervous system. The drug screen done as part of the examination was positive for both substances. His statements were inconsistent as noted in the examination done the previous month which made projection of symptoms in certain circumstances almost impossible. On VA examination in September 2020, forward flexion of the thoracolumbar spine was to 75 degrees, with objective evidence of painful forward flexion and extension. After repetitive motion testing, flexion was limited to 50 degrees. Consideration has also been given to assigning a rating under the Formula for IVDS Based on Incapacitating Episodes. However, the Veteran does not have IVDS and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Although the December 2013 VA examiner indicated that the Veteran had IVDS, he also indicated that the Veteran did not have any incapacitating episodes in the past year. Other VA examiners have consistently opined that the Veteran does not have IVDS. See VA examinations in January 2011, June 2013, August 2015, March 2019, June 2019, and September 2020. In March 2015, M.B., NP, a private treatment provider, diagnosed chronic low pain, with a small disc bulge at L5-S1 without significant nerve impingement or central stenosis. Regarding neurological impairment, the Veteran has already been granted service connection for radiculopathy of the left lower extremity, and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. A private spine examination by J.S., MD, dated January 2015 reflects that the Veteran had no radiculopathy, and in a February 2015 private medical opinion, an examiner from Hampton Roads Neurosurgical Spine indicated that the Veteran had no nerve compression. An August 2015 VA spine examination and a March 2019 VA peripheral nerves examination diagnosed radiculopathy of the left lower extremity but found no radiculopathy of the right lower extremity. VA examiners consistently opined that the Veteran did not have any other neurologic abnormalities or findings related to the service-connected low back disability, and the January 2011 VA examiner specifically opined that his history of impotence was not related to his service-connected lumbar spine disability. Regarding neurological impairment, the Veteran asserts that his erectile dysfunction is related to his low back strain. See January 2011 VA examination. While the Veteran is competent to report symptomatology that he experiences, he has not shown that he has the medical experience or training to relate the condition to his low back strain, which is a medically complex determination that cannot be based on lay observation alone. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Instead, such a determination must be made by a medical professional with appropriate expertise. Id. Accordingly, the Veteran’s statements that his erectile dysfunction is related to his spine condition are not competent evidence. Based on the foregoing, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for low back strain. 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. With regard to the Joint Motion’s instructions that because the Veteran has alleged that his back pain has resulted in sleep disturbance, the Board should consider this symptomatology pursuant to the provision of 38 C.F.R. § 3.321, governing the availability of extraschedular disability ratings, the Board finds that an extraschedular rating is not warranted on this basis. The Veteran's symptom of sleep impairment is already evaluated as a symptom of his service-connected adjustment disorder with depressive disorder. Governing law provides that the evaluation of the same manifestation under different diagnoses, known as pyramiding, is to be avoided. See Esteban v. Brown, 6 Vet. App. 259 (1994); see also 38 C.F.R. § 4.14. An extraschedular rating for the low back disability based on sleep impairment would constitute impermissible pyramiding. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. L. Wasser, 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.