Citation Nr: 21013079 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 15-00 034 DATE: March 8, 2021 ORDER Entitlement to a rating in excess of 20 percent for a low back disability is denied. FINDING OF FACT Throughout the period on appeal, the Veteran's low back disability has not manifested by forward flexion of the of the thoracolumbar spine 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 a low back disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Air Force from October 1985 to October 2005. A February 2006 rating decision granted service connection for low back muscle strain (initially rated as lumbago with residual discomfort) and assigned a 20 percent disability evaluation, effective November 1, 2005. In June 2011, the Veteran submitted a Supplemental Claim for an increased rating for a low back disability, which was denied in a November 2011 rating decision. The Veteran timely appealed the decision, and in October 2018 the Board of Veterans’ Appeals (Board) remanded the issue for further development. Entitlement to a rating in excess of 20 percent for a low back disability 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 evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 U.S.C. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of 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. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Hart v. Mansfield, 21 Vet. App. 505 (2007). Such separate disability ratings are known as staged ratings. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating 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 the 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. Disabilities of the spine are evaluated under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula, with or 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, a 10 percent rating is warranted when there is 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 at the height. A 20 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; 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 evaluation is warranted when there is forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation 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. For VA compensation purposes, normal range of motion for the thoracolumbar spine is 90 degrees of forward flexion, 30 degrees of extension, 30 degrees of left and right lateral flexion, and 30 degrees of left and right lateral rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees, consisting of the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. 38 C.F.R. § 4.71a, General Rating Formal, Note (2) and Plate V. The Veteran contends that she is entitled to a higher initial evaluation for her service-connected low back disability, which is currently assigned a 20 percent evaluation effective November 1, 2005, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242. In a July 2011 VA examination, the examiner diagnosed the Veteran with low back muscular strain. An x-ray taken on that date showed some evidence of mild degenerative disc disease, and an otherwise normal spine. She reported daily low back pain with no stiffness or weakness of extremities. She reported no flare-ups, no periods of incapacitation or prescribed by doctor bed rest, and no interference with daily activities. In the last twelve months, she reported treatment including aspirin. Range of motion (ROM) testing after three repetitions showed flexion 0 to 85 degrees with discomfort, extension 0 to 25 degrees, right and left lateral flexion 0 to 30 degrees, and right and left lateral rotation 0 to 30 degrees. On examination, there was no evidence of painful motion, tenderness, spasms, edema, fatigability, lack of endurance, weakness or instability or loss of function. Loss of function with flare-ups could not be determined without resorting to mere speculation as the Veteran did not report flare-ups. Private medical records from January 2008 through September 2011 indicated complaints of back pain treated with aspirin. VA treatment records from July 2007 through March 2011 indicated history of back pain but no new or worsening complaints for back problems. In an August 2012 statement, the Veteran contended that the 20 percent evaluation did not accurately reflect the severity of her low back disability. Specifically, she stated that she underwent five different treatments in the past 8 months including a shot, nerve blockers, and nerve endings electromagnetic shocks, along with pain medication. The Veteran was afforded a new VA examination in August 2019. The examiner addressed additional records from a private pain clinic whereby the Veteran received treatment. The examiner diagnosed the Veteran with a lumbosacral strain and noted mild degenerative changes of the spine. The Veteran did not report flare-ups, but reported functional loss due to constant back pain aggravated by activity. Initial ROM testing was all normal with no limitation. The examiner reported no evidence of pain with weight bearing and no objective evidence of localized tenderness or pain on palpitation. The examiner described the Veteran’s pain as self-reported pain without physiological changes. There was no additional loss of function or ROM after repetitive use. The examiner stated that he was unable to assess whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use without mere speculation. The Veteran did not have guarding, muscle spasm, muscle atrophy, abnormal movement, lack of endurance, weakness, incoordination, instability, or ankylosis of the spine. Upon review of the evidence of record, the Board finds that a rating in excess of 20 percent for the Veteran’s low back disability is not warranted at any time during the period on appeal. Throughout the period, examinations indicated that the Veteran’s flexion was limited, at worst, to 85 degrees with mild effects on the Veteran's recreation and occupation. There was no evidence of flexion limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine to warrant a higher evaluation. The Board has also considered whether factors including functional impairment and pain as addressed under 38 C.F.R. §§ 4.40 and 4.45 would warrant higher ratings for the Veteran's low back disability. However, the VA examinations documented the Veteran limitations due to pain or repetitive use testing and those limitations are reflected in the currently assigned rating. After a complete review of the record, the Board finds that the pertinent and probative evidence of the claims file does not support the Veteran's contention that the severity of her low back disability warrants an increased evaluation in excess of 20 percent at any time during the period on appeal. The evidence preponderates against an increased evaluation so reasonable doubt provisions are inapplicable. 38 C.F.R. § 3.102. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Sneeringer, Associate 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.