Citation Nr: 21011549 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 15-17 239 DATE: March 2, 2021 ORDER Entitlement to an evaluation in excess of 20 percent for lumbosacral strain is denied. FINDING OF FACT The Veteran’s lumbosacral strain disability has not been shown to result in limitation of forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for lumbosacral strain have not been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Codes 5242-5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United Air Force from May 1976 to April 1980. This issue comes before the Board of Veterans’ Appeals (Board) on appeal of a July 2014 rating decision. The Veteran testified at a Board hearing in August 2018. However, a hearing transcript is not available due to an audio malfunction in the recording of the hearing. The Board afforded the Veteran another opportunity to provide testimony at a Board hearing, which he declined. See Correspondence March 2020 correspondence. The Board remanded the claim in May 2020 for further development. The Board finds that the remand directives have been substantially complied with (current VA examination has been conducted) and therefore will proceed with a decision.  Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. The Veteran contends that the 20 percent rating assigned for his lumbosacral strain should be higher. The Veteran’s lumbar spine disability has been evaluated under Diagnostic Codes 5242-5237. Diagnostic Codes 5242-5237 are governed by VA’s General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), 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 is 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 if forward flexion of the thoracolumbar spine is 30 degrees or less; or, if there is favorable ankylosis of the entire thoracolumbar spine; A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine; A 100 percent rating is warranted for ankylosis of the entire spine. Id. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are separately evaluated under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, at Note (1). The Board has also considered whether an increased rating is warranted via application of Diagnostic Code 5243, concerning intervertebral disc syndrome. On VA examination in April 2014, forward flexion of the spine was marked as 90 degrees or greater. Following repetitive use testing, forward flexion remained at 90 degrees or greater. There was no ankylosis of the thoracolumbar spine. There was no loss of bowel or bladder function. The Veteran did not have intervertebral disc syndrome of the thoracolumbar spine. On VA examination in November 2016, forward flexion was to 80 degrees. The Veteran was able to perform repetitive use testing with no additional loss of function after three repetitions. There was no ankylosis of the spine. There was no loss of bowel or bladder function. The examiner noted that the Veteran did have intervertebral disc syndrome of the lumbar spine, but he did not have any episodes that required bed rest prescribed by a physician in the past 12 months. On VA examination in July 2020, forward flexion was to 80 degrees. The Veteran was able to perform repetitive use testing with no additional loss of function after three repetitions. The examiner noted that pain, weakness, and lack of endurance over a period of time would limit forward flexion to 70 degrees. Additionally, during flare-ups, the examiner determined that forward flexion would be to 70 degrees. There was no ankylosis of the spine. There was no loss of bowel or bladder function. The examiner noted that the Veteran did have intervertebral disc syndrome of the lumbar spine, but he did not have any episodes that required bed rest prescribed by a physician in the past 12 months. The Board finds that a rating in excess of 20 percent for lumbosacral strain is not warranted. Forward flexion of the lumbar spine was to 80 degrees on VA examinations in April 2014 and in November 2016 and to 70 degrees on VA examination in July 2020. Also, there was no evidence of ankylosis of the lumbar spine in any of the examination reports. A higher evaluation of 40 percent is not warranted for this appeal period as there was no evidence of forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Accordingly, a rating in excess of 20 percent is not warranted under the General Rating Formula. With respect to intervertebral disc syndrome, there is no evidence of incapacitating episodes sufficient to warrant an increased evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. While the November 2016 and July 2020 VA examiners determined that the Veteran had intervertebral disc syndrome, it was specifically indicated that there were no incapacitating episodes. Consequently, the Board finds that the Veteran would not be entitled to a higher rating under the formula for rating intervertebral disc syndrome. With regard to Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, the Board notes that the Veteran is in receipt of separate ratings for the service-connected radiculopathy of the bilateral lower extremities, however, those issues are not on appeal. Furthermore, there is no evidence of bowel or bladder impairment associated with the Veteran’s lumbar spine disorder. Therefore, the Board finds that the medical evidence of record fails to show that the Veteran’s lumbar spine disorder was productive of any other objective neurological manifestations sufficient to warrant a separate rating, other than those for which he is already compensated. The Board recognizes the Veteran’s statements attesting to pain and discomfort in his lumbar spine. The Board notes that lay persons can attest to observable symptomatology. In addition, the Veteran’s statements describing his symptoms are competent evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). These statements, however, must be viewed in conjunction with the objective medical evidence as required by the rating criteria. In this regard, the objective medical evidence, including the VA examination reports, include the information necessary to rate the Veteran’s disability in accordance with the rating criteria and the examiners considered the Veteran’s reported symptomatology. Thus, when considering the overall evidence of record, including the Veteran’s statements, the Veteran’s lumbosacral strain disability does not warrant a disability rating in excess of 20 percent. The appeal is denied. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Henriquez, 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.