Citation Nr: 21013140 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 16-11 116A DATE: March 8, 2021 ORDER A rating in excess of 20 percent for lumbosacral strain with arthritis is denied. FINDING OF FACT The weight of the evidence is against finding the Veteran’s low back disability manifests in flexion limited to 30 degrees or less or ankylosis. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for lumbosacral strain with arthritis 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) 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from November 1963 to November 1966, and from January 1967 to June 1988. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a January 2014 rating decision. In September 2017 and September 2019, the Board remanded this matter for additional development. The case has since returned to the Board for the purpose of appellate disposition. 1. A rating in excess of 20 percent for lumbosacral strain with arthritis (low back disability) Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran is competent to give evidence of symptoms observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran contends he is entitled to a higher rating because of the functional impacts of his back disability on his ability to stand for long periods and complete activities. The Veteran’s low back disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, the rating criteria pertinent to this diagnostic code was not changed. 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. 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). The Board finds the preponderance of the evidence is against a rating in excess of 20 percent for the Veteran’s low back disability. In a February 2013 statement, the Veteran wrote that he could not stand for longer than a few minutes, which prevented him from being able to take proper care of himself including cooking and maintaining hygiene. During the December 2013 examination, the Veteran reported flare-ups in symptoms with pain and stiffness. The examiner recorded his flexion to 90 degrees or greater, unchanged on repetition. In a February 2015 statement, the Veteran again discussed his functional impairment preventing lifting more than 20 pounds or standing for longer than a few minutes. During the December 2017 examination, the Veteran reported flare-ups in pain that were so bad he would not want to move and that his back disability prevented him from doing heavy lifting, bending to tie his shoes, and walking for long without stopping. The examiner measured his flexion to 65 degrees with no additional loss of motion after three repetitions. On November 2020 VA examination, the Veteran reported constant pain and increased pain with a twitch that limits movement. He reported that he cannot stand for long, has difficulty bending and lifting, and uses a stick to pick up things. The examiner initially measured his flexion to 45 degrees and opined that his flexion would reduce to 40 degrees with repeated use over time and during flare-ups due to pain and weakness. In sum, the evidence of record shows that the Veteran has flexion greater than the 30 degrees required to qualify for the 40 percent rating. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain and increased pain during flare-ups and with activity. However, even considering the functional limitation during flare-ups, the most restrictive motion shown by the evidence was 40 degrees of flexion. Additionally, the evidence does not show ankylosis of the thoracolumbar spine that could qualify for a 50 percent rating. All three examiners found the Veteran did not have ankylosis, and the lay statements and medical treatment records also do not evidence such a diagnosis. The Board notes that the functional limitations reported by the Veteran were considered in the awards for compensation for total disability based on individual unemployability and special monthly compensation based on the need for aid and attendance. Nevertheless, the evidence does not show a disability picture to satisfy the criteria for a rating in excess of 20 percent for limitation of motion of the low back. 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. In this case, the VA examiners found that the Veteran did not have IVDS, and treatment records also do not show diagnosis of IVDS. Regarding neurological impairment, the Veteran has already been granted service connection for left and right lower extremity radiculopathy in March 2019 and January 2014 rating decisions, respectively. He did not appeal the ratings or effective dates assigned for those disabilities to the Board, and they are not currently before the Board. Moreover, the preponderance of the evidence is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. The VA examiners found he had no other neurologic abnormalities associated with his low back. The Board relies on the medical expertise of the examiners in diagnosing IVDS and neurologic abnormalities and gives their findings great probative weight. The Board is grateful for the Veteran’s honorable service, and this decision is not meant to detract from that service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107(a). Unfortunately, the Board concludes that a rating in excess of 20 percent for low back disability is not warranted at this time. G. E. Wilkerson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.P. Armstrong 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.