Citation Nr: 21015643 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 16-08 115 DATE: March 18, 2021 ORDER An initial rating greater than 10 percent for degenerative changes, lumbar spine at L4-L5, is denied. FINDING OF FACT Throughout the period on appeal, the back disability manifested by subjective complaints of chronic and severe pain; objective findings did not demonstrate forward flexion between 30 and 60 degrees, combined range of motion not greater than 120 degrees, or abnormal gait or spinal contour. CONCLUSION OF LAW The criteria for an initial rating greater than 10 percent for degenerative changes, lumbar spine at L4-L5, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from February 1982 to January 1985 and January 1986 to September 2003, including sea service. For his meritorious service, the Veteran was awarded (among other decorations) the Coast Guard Special Operations Medal, the Navy/Marine Corps Achievement Medal, the Navy Commendation Medal, and the Sea Service Deployment Ribbon. This appeal was previously remanded by the Board in September 2019 for additional development; specifically, the Board directed that updated VA treatment records be obtained and associated with the Veteran’s file, and that he undergo a new VA examination. As updated treatment records were obtained and associated with the Veteran’s claims file, and as the Veteran underwent a new VA examination (as subsequently discussed in greater detail), the Board finds substantial compliance with its remand orders such that the case may move forward. Increased Rating The Veteran is pursuing an initial rating greater than 10 percent for his service-connected back disability. Disability ratings are determined by the applications of the VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Initially, the Veteran was properly rated against DC 5242 as degenerative arthritis of the spine. The rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. The February 2021 amendments reclassified DC 5242 as applying to degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (IVDS). Notably, the Veteran has not been diagnosed with IVDS during the period on appeal, whether under the old or new regulatory definitions of such. See June 2014 and December 2019 VA examinations (denying IVDS in the Veteran). Thus, DC 5242 remains the most appropriate DC for application here. Such a finding is relevant here because the criteria for DC 5242 did not change with the February 2021 amendments. Thus, a 20 percent rating is available upon evidence of the following: • 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. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Further, normal combined range of motion (referencing the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation) for the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, DC 5242 at Note (2). As the Veteran is in receipt of a compensable evaluation based upon limitation of motion, the provisions of DC 5003 (under both the old and new regulations) are inapplicable here. The Veteran underwent two relevant VA examinations during the period on appeal. In June 2014, he reported daily lower back pain ranging from mild to severe. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Precipitating factors were identified as increased or unusual physical activities and inclement weather. Initial range of motion testing showed forward flexion to 80 degrees, with objective evidence of pain beginning at 75 degrees. Initial combined range of motion was to 190 degrees. The Veteran was able to perform repetitive-use testing, with forward flexion to 75 degrees. Combined range of motion following repetitive use was to 165 degrees. Functional loss was described as less movement than normal and pain on movement. Muscle spasm and guarding was reported, but did not result in an abnormal gait or spinal contour. Associated neurologic abnormalities were also denied. The examiner also declined to provide an opinion as to whether pain, weakness, fatigability, or incoordination would significantly limit the Veteran’s functional ability during flare-ups or upon repetitive use over a period of time, as such an opinion would require mere speculation and be devoid of any objective observation. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Due to his disability, the Veteran reported difficulty walking long distances or standing for long periods of time. The Veteran next underwent VA examination in December 2019, at which time he described intermittent but worsening lower back pain. Although the Veteran also described accompanying tingling of his right toes, associated neurologic abnormalities were denied. Initial range of motion testing showed forward flexion to 90 degrees, with a combined range of motion to 210 degrees. Neither the Veteran’s range of motion nor pain on motion contributed to functional loss. He was able to perform repetitive use testing without additional loss of motion. Pain, weakness, fatigability, and incoordination were not said to significantly limit functional ability with repeated use over time or with flare-ups. Guarding and muscle spasms were explicitly denied, as was the use of assistive devices. However, the examiner noted that the Veteran experienced increased pain with standing and walking. The examiner documented evidence of pain on passive range of motion testing; however, there was no evidence of pain when the joint was used in non-weight bearing. At that time, the examiner explicitly noted that the Veteran did not demonstrate increased loss of motion during flare-ups or with repetitive use, only increased pain. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran’s VA and private treatment records do not contradict the above findings to any notable degree. Rather, this evidence speaks to the Veteran’s history of chronic and fluctuating lower back pain accompanied by intermittent spasming. However, these records do not document an abnormal gait or spinal contour, associated neurologic disorders, or additional range of motion testing for consideration. The Veteran has also offered lay testimony regarding the nature and severity of his symptoms during the period on appeal. Layno, 6 Vet. App. at 469. Collectively, these statements report “severe” and “excruciating” lower back pain which has required multiple visits to the emergency room and can render the Veteran unable to drive. See, e.g., lay statements dated August 2013 and January 2015. Per his testimony, the Veteran’s lower back pain required treatment via medication and the use of a brace. Upon the above, an initial rating greater than 10 percent for the Veteran’s back disability is unsupported by the record. At its most severe and considering repetitive use and the presence of pain, the Veteran demonstrated forward flexion to 75 degrees and combined range of motion to 165 degrees. Although muscle spasms and guarding were intermittently reported, at no time did they result in an abnormal gait or spinal contour. Accompanying symptoms of weakness, fatigability, or incoordination were not found to cause functional impairment, even during flare-ups or with repetitive use over a period of time. DeLuca, 8 Vet. App. at 206-07. Related neurological conditions were also unreported. Thus, the Veteran did not demonstrate such limitation of motion or spasming/guarding at any time during the period on appeal as to warrant a higher rating under DC 5242. Rather, his disability picture is fully embodied in the criteria for the 10 percent rating, as currently assigned. In offering this finding, the Board does not disregard the Veteran’s testimony regarding chronic and severe back pain which worsens during flare-ups. Layno, 6 Vet. App. at 469. However, he lacks the medical training and expertise to competently identify a specific level of disability according to the applicable DC. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Instead, greater probative value is offered to the medical evidence in assessing the severity of his disability during the period on appeal, as the examiners possess the requisite expertise to render opinions regarding the degree of impairment caused by the Veteran’s disability and had sufficient facts and data on which to base their conclusions. In this respect, the Board finds that the medical evidence supports the determination offered above. Additionally, the Board observes that the Veteran’s lay testimony commonly depicts a more severe disability picture than otherwise shown in the record. Miller v. Wilkie, 32 Vet. App. 249 (2020). For example, the Veteran has reported multiple emergency room trips due to extreme lower back pain; however, the record is silent for any emergency room visits during the period on appeal. Similarly, the Veteran has reported that his back pain can be so severe that he is unable to drive a car; however, he has not reported such functional impairment to any treatment provider, including his VA examiners. However, it is reasonable to assume that the record would contain documentation of emergency treatment or that the Veteran would be candid in his reporting to his treatment providers. Finally, this appeal was initiated upon the Veteran’s contention that his disability was worse than first evaluated; however, his subsequent VA examination documented an actual improvement to his range of motion and overall disability picture. Accordingly, the Veteran’s reporting alone is inadequate upon which to find that his lower back pain is productive of analogous symptomatology as that enunciated in the criteria for a higher rating. This appeal is hereby denied. [CONTINUED ON NEXT PAGE] Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kovarovic, 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.