Citation Nr: 21012710 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 17-60 425 DATE: March 5, 2021 ORDER Entitlement to an initial 20 percent rating, but no higher, for lumbar strain with degenerative disc disease is granted. FINDING OF FACT During the appeal period, lumbar strain with degenerative disc disease has been manifested with flexion to 60 degrees, at worst, with consideration of functional loss and without unfavorable ankylosis of the thoracolumbar spine or incapacitating episodes of intervertebral disc syndrome. CONCLUSION OF LAW The criteria for an initial 20 percent rating, but no higher, for lumbar strain with degenerative disc disease have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1974 to September 1984. An August 2019 Board decision denied a rating in excess of 10 percent for lumbar strain. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In July 2020, the Court granted a Joint Motion for Partial Remand and remanded the appeal back to the Board for action consistent with the Joint Motion. The Board remanded this matter for additional development in November 2020. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities ("Rating Schedule"), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. See 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. See 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. See 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits as well as the entire history of his disabilities in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 1. Entitlement to a 20 percent rating for lumbar strain with degenerative disc disease The Veteran’s lumbar spine degenerative joint disease is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, 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. Effective February 7, 2021, degenerative arthritis and degenerative disc disease other than intervertebral disc syndrome are to be rated under Diagnostic Code 5242. A rating under Diagnostic Code 5243 for intervertebral disc syndrome is only to be assigned when there is disc herniation with compression of the adjacent nerve root. See 85 Fed. Reg. 76464 (Nov. 30, 2020). However, as there is no relevant evidence dated after February 7, 2021 in this case, the amended regulations are not applicable in this case. 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 background 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. The Veteran contends that a higher initial rating is warranted for lumbar spine degenerative disc disease. The August 2016 rating decision on appeal granted assigned an initial 10 percent rating for the Veteran’s lumbar spine disability. On review, the Board finds that a 20 percent rating, but no higher, is warranted for lumbar spine degenerative disc disease, based on limitation of motion of the lumbar spine approximating forward flexion greater than 30 degrees but not greater than 60 degrees. A July 2016 VA examination reflects that the Veteran reported flare-ups that occur if he over-exerts himself. It was noted that he was sent to rehab to keep from injuring himself. The episodes occurred randomly and could last several hours or days. The frequency of flare-ups was two times a month. Physical examination showed forward flexion to 90 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 10 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 10 degrees. The combined range of motion of the lumbar spine was 200 degrees. The examiner described the functional loss of the lumbar spine as decreased range of motion with left lateral flexion and rotation due to back pain. There was tenderness of the lower lumbar paraspinal area with palpation. There was no additional loss of range of motion with repetition. The examiner was unable to determine whether there was additional limitation of motion of the lumbar spine due to functional loss over time or during flare-ups. There was localized tenderness that did not result in abnormal gait or abnormal spinal contour. Additional factors contributing to disability included prolonged sitting, standing, and walking. There was no ankylosis. The examination indicated that IVDS that did not require bedrest prescribed by a physician. In November 2020, the Board remanded the claim to obtain an examination that complied with the requirements of Sharp. The Veteran was afforded a VA examination in December 2020. The Veteran reported daily flare-ups of his back, which were precipitated by physical exertion or any jarring. They were mild to severe, occurred randomly, and could last several hours to days. The Veteran also reported low back stiffness after prolonged sitting and standing and described functional impact as severe at times due to limited mobility and intolerable pain. The Veteran had forward flexion to 70 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 15 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 15 degrees. There was no additional loss of function or motion after repetitive use testing. However, the examination noted functional loss due to pain with repeated use over time and during flare-ups. With consideration of functional limitations during these circumstances, the examiner estimated forward flexion to 65 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 10 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 10 degrees. The examination report noted that the Veteran did not have acute signs and symptoms of IVDS requiring physician-prescribed bedrest in the past 12 months. The Veteran was noted to have muscle spasm not resulting in abnormal gait or abnormal spinal contour. There was no evidence of guarding. The evidence reflects forward flexion limited to 65 degrees, with consideration of functional loss due to pain and flare-ups. The Board resolves reasonable doubt in the Veteran’s favor and finds that a 20 percent rating, but no higher, is warranted for lumbar spine degenerative disc disease, based on limitation of motion of the lumbar spine approximating forward flexion greater than 30 degrees but not greater than 60 degrees. A 40 percent rating for his lumbar spine disability is not warranted, as the evidence does not show forward flexion of the thoracolumbar spine limited to 30 degrees or unfavorable ankylosis of the lumbar spine. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS that required physician prescribed bedrest. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Accordingly, a higher rating is not warranted based on incapacitating episodes of intervertebral disc syndrome. Regarding neurological impairment, the Veteran has already been granted service connection for radiculopathy of the right and left lower extremities, 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. Based on the foregoing, a 20 percent rating, but no higher, is granted for lumbar spine degenerative disc disease throughout the appeal period. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Catherine Cykowski 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.