Citation Nr: 21011650 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 15-18 588 DATE: March 2, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for chronic lumbar strain prior to March 16, 2016, and in excess of 40 percent thereafter is denied. FINDINGS OF FACT 1. Prior to March 16, 2016, the Veteran’s chronic lumbar strain manifested orthopedic impairment with pain and limitation of motion most nearly approximating forward flexion to 50 degrees or better and a combined range of motion of 150 degrees or better without ankylosis or intervertebral disc syndrome. 2. From March 16, 2016, the Veteran’s chronic lumbar strain has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine or intervertebral disc syndrome. CONCLUSIONS OF LAW 1. Prior to March 16, 2016, the criteria for entitlement to an increased rating greater than 20 percent for chronic lumbar strain are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.45, 4.71a, Diagnostic Code 5237. 2. From March 16, 2016, the criteria for entitlement to an increased rating greater than 40 percent for chronic lumbar strain are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.45, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from April 1976 to July 1980. This matter comes before the Board of Veterans Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in July 2018 and December 2019 when it was remanded to the Agency of Original Jurisdiction (AOJ) for additional development. Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Service connection for chronic lumbar strain was granted in an April 2013 rating decision, and a 20 percent disability rating was assigned, effective November 17, 2011, under 38 C.F.R. § 4.71a, Diagnostic Code 5237. In an April 2017 rating decision, the RO granted an increased rating of 40 percent, effective March 16, 2016, under 38 C.F.R. § 4.71a, Diagnostic Code 5237. The Veteran’s service-connected low back disability is rated under the general rating formula for diseases and injuries of the spine under Diagnostic Code 5237 for lumbosacral or cervical strain. 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under the General Rating Formula, a 20 percent rating is assigned when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a 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 limitation of 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 if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are rated separately under an appropriate diagnostic code. Id. at Note (1). Turning to the evidence of record, the Veteran underwent a VA examination in March 2013. He reported ongoing pain from an injury in 1979. He denied flare-ups of low back symptoms Range of motion showed forward flexion from 0 to 90 degrees with pain at 50 degrees, extension from 0 to 20 degrees with pain at 10 degrees, right and left lateral flexion from 0 to 25 degrees with pain at 20 degrees, and right and left lateral rotation to 30 degrees with pain at 25 degrees. The Veteran performed repetitive use testing without additional limitation of motion. He exhibited pain on motion and interference with sitting, standing, and/or weight-bearing but had normal gait and muscle strength. The examiner found no intervertebral disc syndrome (IVDS) of the spine and opined that the Veteran’s lumbar spine disorder did not impact his ability to work. The Veteran underwent another VA examination in March 2016. He reported chronic lumbar pain, which increased with bending, lifting, standing and walking, but did not report having flare-ups. Range of motion showed forward flexion to 30 degrees, extension to 0 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 30 degrees. The examiner noted that there was pain with all range of motion and with weight bearing. The Veteran performed repetitive use testing without additional loss of function or range of motion. The examiner documented normal strength testing and did not document any evidence of IVDS or ankylosis. The examiner noted that the Veteran’s lumbar spine disorder impacted his ability to work in that he was unable to perform manual labor, prolonged standing, or prolonged walking. The examiner found that the Veteran was able to engage in sedentary, sitting employment. Pursuant to a December 2019 Board remand, the Veteran received another VA examination in September 2020. He endorsed ongoing back pain since service and flare-ups with increased episodes of pain when sleeping in certain positions as well as when standing for extended periods of time. On physical examination, range of motion showed forward flexion to 70 degrees, extension to 5 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 5 degrees. Pain with range of motion was reported, but the examiner indicated that the pain did not result in functional loss. The Veteran was able to perform repetitive use testing with no additional loss of motion or function. Range of motion during flare-ups was reported as forward flexion to 5 degrees, extension to 5 degrees, right and left lateral flexion to 5 degrees, and right and left lateral rotation to 5 degrees. There was no objective evidence of localized tenderness, pain on palpitation, or pain with weightbearing. There was no muscle spasm, localized tenderness, and guarding not resulting in abnormal gait or spinal contour. There was no ankylosis of the spine or IVDS. The examiner noted that the Veteran’s lumbar spine disability impacted his ability to work, as it resulted in his inability to perform many tasks such as moving or carrying equipment. VA treatment records show complaints of ongoing back pain during the rating period, but no evidence of ankylosis. After careful review of the record, the Board finds that the most probative evidence does not reach the level of equipoise as to whether the chronic lumbar strain manifested functional impairment to the extent that a rating higher than 20 percent prior to March 16, 2016 or a rating higher than 40 percent from March 16, 2016 is warranted. Prior to March 16, 2016, the Veteran’s chronic lumbar strain manifested functional impairment equivalent to forward flexion of more than 30 degrees but not greater than 60 degrees. In that regard, the 2013 VA examination documented forward flexion to 50 degrees, with consideration of the impact of pain. Ankylosis was not reported. As there is no evidence of record prior to March 16, 2016 documenting forward flexion to 30 degrees or less or favorable ankylosis of the thoracolumbar spine, an initial rating greater than 40 percent is not warranted prior to March 16, 2016. 38 C.F.R. § 4.71a, DC 5237. Additionally, an increased rating greater than 20 percent is not warranted under the criteria pertaining to intervertebral disc syndrome (IVDS), as the medical evidence shows that the Veteran does not have IVDS of the thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Board has also considered the lay statements that the Veteran experienced symptoms and flare-ups that limited his ability to function. However, as noted above, the objective evidence does not indicate a loss of motion consistent with higher evaluations under the general rating formula. The Board concludes that the Veteran’s reported impairments are contemplated by the current 20 percent evaluation prior to March 16, 2016. Thus, even with consideration of all relevant functional factors, the Board finds that a rating more than 20 percent for orthopedic impairment of the lumbar spine is not warranted prior to March 16, 2016. From March 16, 2016, the Veteran has experienced functional impairment equivalent to forward flexion of the thoracolumbar spine limited to 30 degrees or less. Specifically, the March 2016 VA examination found forward flexion limited to 30 degrees and the September 2020 examiner predicted that the Veteran would be limited to 5 degrees of forward flexion during flare-ups. 38 C.F.R. § 4.71a, DC 5237. The record does not demonstrate unfavorable ankylosis of the entire thoracolumbar spine. In that regard, the September 2020 VA examination reported that there was no ankylosis of the spine. An increased rating greater than 40 percent is not warranted under the criteria pertaining to IVDS, as the medical evidence shows that the Veteran does not have IVDS of the thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5243. (Continued on the next page)   The Board has considered whether a higher rating may be assigned based on periods of flare-ups. Notably, the AOJ confirmed a 40 percent rating in accordance with the 2020 examiner’s estimate that the Veteran would be limited to 5 degrees forward flexion during such periods. See Supplemental Statement of the Case, October 2020. The Board notes that a 40 percent rating is the maximum that may be assigned for limited motion under the rating schedule. 38 C.F.R. § 4.71a, DC 5237. In sum, the Veteran’s orthopedic impairment of the service-connected lumbar spine disability is appropriately rated as 20 percent disabling prior to March 16, 2016, and 40 percent disabling from March 16, 2016. The Board has considered whether there is any other schedular basis for granting higher ratings for the orthopedic impairment resulting from the Veteran’s low back disability, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the grant of a higher schedular rating. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. MICHELLE P. KATZ Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Javed 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.