Citation Nr: 21012468 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 14-30 300 DATE: March 4, 2021 ORDER Entitlement to a rating greater than 20 percent for chronic lumbar spine disability is denied. FINDING OF FACT The Veteran’s chronic lumbar spine disability is not manifested by forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. CONCLUSION OF LAW The criteria for a rating greater than 20 percent for chronic lumbar spine disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1993 to December 1998. The listed issue was remanded by the Board in June 2018 and April 2020. In March 2020, VA granted service connection for radiculopathy of the right and left lower extremities and assigned separate 10 percent ratings effective March 12, 2019. In October 2020, VA increased the ratings for radiculopathy to 20 percent for each extremity effective October 28, 2020. The Board acknowledges that the right and left lower extremity radiculopathy rating issues were included in the October 2020 supplemental statement of the case. On review, however, the Board does take jurisdiction of these issues. That is, the Veteran did not disagree with the ratings assigned and did not perfect an appeal of these issues. The issues were not included in the Board’s April 2020 remand nor were they addressed in the most recent January 2021 informal hearing presentation. Entitlement to a rating greater than 20 percent for chronic lumbar spine disability In August 2012, VA increased the rating for the Veteran’s lumbar spine disability to 20 percent effective November 15, 2010. The Veteran disagreed with the rating and perfected this appeal. She generally contends that the assigned rating does not adequately reflect the severity of her disability. In the January 2021 informal hearing presentation, the representative noted that lay statements indicate increased pain with range of motion and forward flexion. Additionally, she experiences flare-ups with bending, twisting, climbing stairs, prolonged walking, sitting or standing, and lifting greater than 20 pounds. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. The Veteran’s service-connected lumbar spine disability is currently evaluated as degenerative arthritis (Diagnostic Code 5242) and lumbosacral strain (Diagnostic Code 5237) under the General Rating Formula for Diseases and Injuries of the Spine. 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 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. VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. The United States Court of Appeals for Veterans Claims (Court) has held that a higher rating can be based on “greater limitation of motion due to pain on use.” DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Any such functional loss must be “supported by adequate pathology and evidenced by the visible behavior of the claimant.” 38 C.F.R. § 4.40. On VA examination in December 2010, the Veteran reported that she has problems sitting for prolonged periods due to her back pain. She cannot do any type of twisting or she gets a large amount of pain. She also has difficulty walking but does not experience incapacitating episodes. Her flare-ups are activity related and she has problems every day. She did not require any assistive devices. On physical examination, range of motion of the back was forward flexion to 70 degrees, extension to 0 degrees, lateral flexion to 10 degrees, and lateral bending to 10 degrees. She reported pain on any range of motion and motion was unchanged with repetition. There were no spasms but there was some tenderness in the right lumbar spine, paraspinal musculature. Diagnosis was mechanical low back pain. X-rays of the lumbar spine taken in January 2012 were reported as normal. VA record dated in June 2012 indicates that the Veteran’s back pain was muscular as her scans were negative. Private records dated in May 2013 indicate that the Veteran had constant episodes of moderate bilateral lower back pain. On physical examination, there was mild tenderness in the lower back in the paraspinal area but otherwise normal. Assessment was lumbago. On VA examination in October 2013, the Veteran reported that sitting, standing, and walking for prolonged periods exacerbates her pain. It feels like a burning sensation in the low back region. She did not report flare-ups. On range of motion testing, forward flexion was to 45 degrees with pain beginning at 45 degrees; extension was to 30 degrees with no objective evidence of painful motion; right and left lateral flexion was to 30 degrees with no objective evidence of painful motion; and right and left lateral rotation was to 30 degrees with no objective evidence of painful motion. She was able to perform repetitive use testing with no additional limitation. The examiner stated that there was functional loss due to less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing and/or weightbearing. There was no localized tenderness or pain to palpation and no guarding or muscle spasm. There was no invertebral disc syndrome (IVDS). X-rays of the lumbar spine were negative. On VA examination in June 2016, the Veteran reported constant aching lower back pain worse with prolonged standing, walking, sitting, bending, and lifting more than 15 pounds. Pain improves with position change, rest, and use of medication. Bending causes sharp lower back pain. She did not report flare-ups but said she cannot make rapid movements or walk up and down stairs. On range of motion testing, forward flexion was from 0 to 50 degrees; extension 0 to 15 degrees; right and left lateral flexion 0 to 20 degrees; and right and left lateral rotation 0 to 30 degrees. There was pain noted in all ranges which caused functional loss. There was no objective evidence of localized tenderness or pain on palpation and no evidence of pain with weightbearing. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion. The examiner stated that pain would significantly limit functional ability with repeated use, but he was not able to describe in terms of range of motion. There was no guarding or muscle spasm of the thoracolumbar spine. There was no ankylosis or IVDS of the lumbar spine. On VA examination in March 2019, the Veteran reported continued lower back pain that she felt was worsening. At times the pain is burning. She reported flare-ups and functional limitations with forward bending, twisting, climbing stairs, prolonged walking, sitting, standing, and lifting over 20 pounds. On range of motion testing, forward flexion was 0 to 60 degrees; extension 0 to 30 degrees; right lateral flexion 0 to 20 degrees; left lateral flexion 0 to 30 degrees; and right and left lateral rotation 0 to 30 degrees. She reported increased pain with range of motion and pain was noted in all planes except for left lateral flexion. There was no pain with weightbearing. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion. The examiner was unable to state additional limitations in terms of degrees with flare-ups or repeated motion. There was no guarding or muscle spasm. There was no ankylosis and no IVDS of the lumbar spine. X-rays of the lumbar spine showed mild degenerative change. The Veteran most recently underwent a VA examination in October 2020. She reported constant pain which increased with activities, more so with prolonged sitting and standing. Flare-ups were described as burning and tightening. If she bends too much it gets bad and can be sharp at times. Flare-ups occurred 2 times a week and last an hour to all day. She reported functional impairment with prolonged sitting or standing, picking up her granddaughter, carrying groceries, and going up stairs. Range of motion was forward flexion 0 to 60 degrees; extension 0 to 10 degrees; right lateral flexion 0 to 10 degrees; left lateral flexion 0 to 15 degrees; and right and left lateral rotation 0 to 30 degrees. There was pain noted on examination in all planes except right and left lateral rotation. There was pain with weightbearing and tenderness to moderate palpation in the lower lumbar spine and bilateral sacroiliac joints. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion. The examiner stated that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. Pain did limit functional ability with flare-ups. In terms of range of motion, this was described as forward flexion 0 to 50 degrees; extension 0 to 10 degrees; right lateral flexion to 0 degrees; left lateral flexion 0 to 5 degrees; and right and left lateral rotation to 20 degrees. There was no guarding or muscle spasm of the thoracolumbar spine. There was no ankylosis. The examiner stated that there was IVDS, but the Veteran did not have acute signs and symptoms that required bed rest prescribed by a physician. Initially, it is noted that the April 2020 remand specifically directed the VA examiner to discuss the degree of functional loss during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2019). The examiner was also requested to note the degree at which pain starts when examining range of motion. The Veteran underwent additional examination in October 2020 and the examiner did discuss functional limitation with flare-ups due to pain and described the additional loss in terms of degrees. The examiner also noted the existence of pain with motion but did not specifically state where that pain started. This information is not necessary for rating purposes as the Board is to consider functional impairment due to pain on motion rather than simply looking at the point where pain begins. On review, the record is adequate for rating purposes and the Board finds substantial compliance with the remand directives such that additional examination is not required. See Dyment v. West, 13 Vet. App. 141 (1999). On review, the criteria for a rating greater than 20 percent are not met or more nearly approximated. That is, forward flexion is consistently shown to be greater than 30 degrees, even when considering limitations with repetitive use and during flare-ups, and there is no evidence of favorable ankylosis. In making this determination, the Veteran’s complaints of severe pain and functional limitations are acknowledged. The Veteran is competent to report this information, but the Board does not find adequate pathology to support a higher rating at any time during the appeal period based on functional impairment due to pain on motion or other factors. In this regard, the Board notes that recent x-rays showed only mild degenerative change. The Board notes that the most recent examination indicated the presence of IVDS. There is, however, no evidence of incapacitating episodes as defined by VA regulation and a rating in excess of 20 percent is not warranted under the Formula for Rating IVDS Based on Incapacitating Episodes. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. Finally, the Board observes that VA’s schedule for rating musculoskeletal disabilities was amended during the appeal period effective February 7, 2021. See 85 Fed. Reg. 76453, 76,462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243). The Board may not apply the amended regulation prior to the effective date of February 7, 2021. See VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). On review, the amendments did not change the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating IVDS Based on Incapacitating Episodes. Further, the amended rating criteria allow for the assignment of Diagnostic Code 5243 only when there is disc herniation with compression and/or irritation of the adjacent nerve route. This is not shown, and the Veteran’s disability remains appropriately evaluated under the general rating formula as discussed above. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 4.3. The claim is denied. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Carsten, 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.