Citation Nr: 21012482 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-23 895 DATE: March 4, 2021 ORDER A rating higher than 10 percent as of June 12, 2012, and higher than 20 percent as of September 12, 2014, for a lumbar spine disability is denied. FINDINGS OF FACT 1. Between June 12, 2012, and September 11, 2014, the evidence indicates that the Veteran’s lumbar spine disability manifested in forward flexion no worse than 90 degrees, with combined range of motion of greater than 120 degrees. There was no evidence of muscle spasm or guarding. 2. As of September 12, 2014, the evidence indicates that the Veteran’s lumbar spine disability has manifested in forward flexion of 55 degrees, at worst. There is no evidence of ankylosis of the thoracolumbar spine. CONCLUSION OF LAW The criteria for a rating higher than 10 percent as of June 12, 2012, and higher than 20 percent as of September 12, 2014, for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1979 to November 1982. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision of a Department of Veterans Affairs Regional Office. Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran contends that his lumbar spine disability is progressive worsening, warranting an increased rating for the appeal period. The Veteran's lumbar spine disability is rated pursuant to DC 5237, for lumbosacral strain, under the General Rating Formula for Diseases and Injuries of the Spine for Diagnostic Codes 5235 to 5243. During the pendency of the appeal, VA issued a final rule revising the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a. 85 Fed. Reg. 76,453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). The final rule went into effect February 7, 2021. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. The Board notes that the new rating criteria did not make amendments to DC 5237. With regards to other potentially relevant codes, specifically DC 5003 for degenerative arthritis, the amendments also did not make any substantive changes. The General Rating Formula for Diseases and Injuries of the Spine provides that a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the cervical spine greater than 120 degrees, but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour. A 20 percent rating is assigned 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 assigned for forward flexion of the thoracolumbar spine of 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is awarded for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Notes (2), (4). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (6). The criteria are applied with and without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion. Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (3). At a July 2013 VA examination, the Veteran reported lower back pain with daily flareups lasting 20 to 40 minutes. On examination, forward flexion of the lumbar spine was to 90 degrees, with the Veteran experiencing pain at 70 degrees. Extension was to 30 degrees or more, experienced with pain. The Veteran was able to perform repetitive use testing without additional loss of range of motion or function. There was no evidence of muscle spasm, guarding, localized tenderness or pain to palpation of the affected area. Muscle strength was normal, with no evidence of atrophy. The examiner noted that imaging had not documented arthritis. The examiner found no functional impact on the ability to work. At a September 2014 VA examination, the Veteran reported aching lower back pain, especially with prolonged standing or when walking more than 10 to 15 minutes. Prolonged sitting caused increased stiffness in the lower back. The Veteran reported weekly flareups of increased back pain which reduced mobility. On examination, forward flexion of the lumbar spine was to 70 degrees, with the Veteran experiencing pain at 60 degrees. Extension was to 15 degrees, with pain. The Veteran was able to perform repetitive use testing, with additional limitation in flexion to 60 degrees. Functional loss was noted in the form of less movement than normal, pain on movement, interference with sitting and standing and lack of endurance. The examiner noted that the Veteran would experience about 20 degrees of additional loss of range of motion with repeated use over a period of time. There was no evidence of muscle spasm, guarding, localized tenderness or pain to palpation of the affected area. Muscle strength was normal, with no evidence of atrophy. X-rays found lumbar spondylitic changes. The examiner found that the Veteran’s lumbar spine disability impacted his ability to work by limiting the length of time he can stand or walk while walking. At an April 2019 VA examination, the Veteran reported back pain with flareups of sharp, constant aching pain and spasms. The Veteran also reported increased back pain and stiffness with bending, standing and walking. On examination, forward flexion was to 60 degrees, with pain. Extension was to 10 degrees with pain. The examiner noted additional loss of range of motion with repeated use over time, with flexion limited to 50 degrees; and during flareups, with flexion limited to 45 degrees, due to pain and lack of endurance. Muscle strength was normal, with no evidence of atrophy. There was no evidence of ankylosis. The examiner found that back pain with bending, prolonged standing and walking more than three blocks impacted the Veteran’s ability to work. At an October 2020 VA examination, the Veteran reported sharp, stabbing and throbbing back pain which prevented him from performing physical activity. He also stated that about three times per week, he experienced flareups of sharp pain, lasting about two hours. The Veteran reported functional impairment in the form of difficulty lifting heavy items, pushing carts at work, and standing and walking for long periods of time. On examination, forward flexion was to 70 degrees, with pain. Extension was to 25 degrees, with pain. The examiner found that pain itself did not contribute to functional loss, however, pain with movement did cause functional loss. The examiner noted additional loss of range of motion with repeated use over time, with flexion limited to 65 degrees; and during flareups, with flexion limited to 60 degrees, due to pain and weakness. The Veteran experienced muscle spasms, but they did not result in abnormal gait or spinal contour. Muscle strength was normal, with no evidence of atrophy. There was no evidence of ankylosis. The examiner noted no degenerative changes were seen on x-rays. The examiner noted that the Veteran had missed one to two weeks of work in the last 12 months due to lumbar strain and bilateral lower extremity radiculopathy, and that the Veteran was limited at work with bending, pushing, pulling, carrying and lifting heavy objects. VA medical records are consistent with VA examination reports, indicating a history of lower back pain with occasional flareups. Additional records do not provide additional findings relevant to the rating criteria. After review of the record, the Board finds that the preponderance of the evidence is against a finding that a rating higher than 10 percent is warranted prior to September 12, 2014. Prior to that date, the evidence indicates that the Veteran’s lumbar spine disability manifested in forward flexion no worse than 90 degrees, with the Veteran experiencing pain at 70 degrees. There is no indication that forward flexion was ever limited to 60 degrees or less, or that combined range of motion of the thoracolumbar spine was less than 120 degrees. There was also no evidence of muscle spasm or guarding resulting in abnormal gait or abnormal spinal contour prior to September 12, 2014. The Board finds that as of September 12, 2014, the preponderance of the evidence is against a finding that a rating higher than 20 percent is warranted. VA examinations during this period found forward flexion of 45 degrees at worst, considering functional loss with repeated use or during flareups. There is no evidence of forward flexion of the thoracolumbar spine 30 degrees or less, or of favorable ankylosis of the entire thoracolumbar spine, even considering other functionally limiting factors. Therefore, a rating higher than 20 percent is not warranted as of September 12, 2014. The Board has considered whether the application of another diagnostic code may enable a higher rating, including DC 5003 for degenerative arthritis. However, after review, the Board finds that no other diagnostic code provides for a higher or separate rating. Further, there is no evidence of incapacitating episodes resulting from intervertebral disc syndrome, and thus a higher rating under the IVDS formula is not proper. See 38 C.F.R. § 4.71a, DC 5243. The Board notes that the evidence indicates radiating pain in the right and left legs; however, the Veteran is already separately rated for service-connected radiculopathy of the lower extremities. (Continued on the next page)   In deciding this appeal, the Board has analyzed the credibility and probative value of the evidence, accounting for the evidence which is found to be persuasive or unpersuasive. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran is competent to report symptoms, such as pain, because that requires only personal knowledge as it comes to her through her senses. Layno v. Brown, 6 Vet. App. 465 (1994). However, the objective evidence does not demonstrate symptoms that more nearly approximate a higher rating under the schedule of ratings for the musculoskeletal system during the appeal period. Neither the Veteran nor her representative has provided any other evidence or indicated any reason why a rating higher than 20 percent is warranted. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating higher than 10 percent prior to September 12, 2014; and higher than 20 percent as of September 12, 2014, for a lumbar spine disability. Therefore, the claim for increased rating is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Ahmad, 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.