Citation Nr: 21016028 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 15-42 930 DATE: March 19, 2021 ORDER Entitlement to a 20 percent rating prior to October 24, 2019 and a 40 percent rating percent thereafter for a lumbar spine strain with mild degenerative changes is granted. FINDINGS OF FACT 1. Prior to October 24, 2019, the Veteran’s lumbar spine strain resulted in a functional impairment equivalent to a forward flexion greater than 30 degrees but not greater than 60 degrees. 2. Beginning October 24, 2019, the Veteran’s lumbar spine strain resulted in a functional impairment equivalent to a forward flexion less than 30 degrees. CONCLUSIONS OF LAW 1. Prior to October 24, 2019, the criteria for a 20 percent rating for a lumbosacral strain have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242 (2020). 2. Beginning October 24, 2019, the criteria for a 40 percent rating for a lumbosacral strain have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Marine Corps from March 2004 to December 2007. 1. Entitlement to a 20 percent rating prior to October 24, 2019 and to a 40 percent rating thereafter for a lumbar spine strain with mild degenerative changes The Veteran’s lumbar spine strain is rated as 10 percent disabling prior to October 24, 2019 and 20 percent disabling thereafter pursuant to Diagnostic Code 5242. Diagnostic Code 5242 is rated under the General Rating Formula for Diseases and Injuries of the Spine. For the reasons discussed herein, the Board finds the Veteran’s functional limitations considering reports of flare ups are more closely approximated by the rating criteria for a 20 percent rating prior to October 24, 2019 and a 40 percent rating thereafter. Under the current General Rating Formula for Diseases and Injuries of the Spine, a 10 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, a combined range of motions 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 vertical body fracture with loss of 50 percent or more height. A 20 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, 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 assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. Associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment are evaluated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note (2). Turning to the evidence, the Veteran was seen for a VA examination in September 2015. The Veteran reported flare ups during which he is “limited in everything.” Range of motion testing showed forward flexion to 75 degrees, extension to 20 degrees, bilateral lateral flexion was to 25 degrees, and bilateral rotation was to 25 degrees. The examiner noted there was pain with weightbearing, but no additional loss following repetitive use. The examiner stated it would be speculative to find additional functional limitations during flare ups. Muscle spasms resulted in localized tenderness and guarding which did not result in abnormal gait or spine contour. Reflexes were normal. The Veteran was not found to have intervertebral disc syndrome (IVDS), radiculopathy, or ankylosis. VA medical center (VAMC) records are present in the period between the September 2015 VA examination and the October 2019 VA examination; however, there is no range of motion testing indicated. The record indicates the Veteran was receiving chiropractic care for his chronic back pain. Upon VA examination in October 2019, the Veteran reported activity worsened his pain and flare ups resulted in difficulties with activities such as putting on his shoes. Range of motion testing showed the Veteran was capable of forward flexion to 40 degrees, extension to 15 degrees, and bilateral flexion and rotation to 20 degrees. The examiner noted that pain on examination causes functional loss. The examiner did not provide an opinion regarding functional loss during flare ups, but stated that pain, weakness, and fatiguability or incoordination would not significantly limit the Veteran. The examiner found that the additional contributing factors of disability included less movement than normal due to ankylosis, adhesions, instability of station, disturbance of locomotion, and interference with sitting and standing. There was no evidence of muscle atrophy. The examiner noted that passive range of motion testing cannot be performed on the spine. The examiner further noted that after listening to the Veteran’s complete history including subjective complaints, the examiner had no basis to offer additional losses of function or motion regarding repetitive use or during a flare up. Affording the Veteran the benefit of the doubt, the Board finds that prior to October 24, 2019, the Veteran’s functional limitations were more closely approximated by a 20 percent rating. While the September 2015 VA examiner found the Veteran’s forward flexion was limited to 75 degrees at worst, the examiner did not provide an opinion regarding the Veteran’s flare ups during which the Veteran stated that he was significantly limited in performing all activities. Prior to October 24, 2019, the evidence of record does not support a rating in excess of 20 percent. There is no evidence of ankylosis nor evidence that the Veteran’s range of motion even when considering flare ups would be functionally equivalent to a limitation of 30 degrees or less. Beginning October 24, 2019, the Board finds that the Veteran’s functional limitations were most closely approximated b a 40 percent rating. While the examiner found the Veteran would be limited to forward flexion of 40 degrees at worst, the examiner did not provide an opinion regarding flare ups. Further, the VA examination is internally inconsistent finding that the Veteran would be limited from ankylosis in one section, but checking there was no evidence of ankylosis in another section of the examination. The Board finds that while the examination is inconsistent, the Veteran’s overall disability picture closely aligns with the criteria for an increased, 40 percent, rating. Therefore, the Board finds that an additional remand is not warranted to correct the deficiens of the October 2019 VA examination. A rating in excess of 40 percent is not warranted. The evidence of record is absent of any findings or notations of unfavorable ankylosis of the entire thoracolumbar spine, as required for the next higher, 50 percent, rating during the entire period on appeal. The Board acknowledges the lay reports of the Veteran’s symptoms, to include pain and decreased motion. The Board has also taken into consideration the provisions under Deluca. The Board notes that the Veteran has functional impairment on repeated use due to pain, loss of motion, fatigue and weakness. However, the Board finds that the Veteran’s symptoms and functional limitations do not more closely approximate the criteria for the next higher ratings. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). The Board has also considered whether the Veteran is entitled to a higher rating under the Formula for Rating IVDS Based on Incapacitating Episodes. There is no evidence that the Veteran has been diagnosed with IVDS nor has been prescribed any periods of bedrest. Therefore, a higher rating for IVDS is not warranted by the record. The Board has also considered whether the Veteran is entitled to separate ratings for associated objective neurological abnormalities. In this regard, the Veteran is service connected for numbness of the nerve in the right thigh. There is no evidence of additional or increased impairments as related to his neurological abnormalities. (Continued on the next page)   In sum, a 20 percent disability rating prior to October 24, 2019 and a 40 percent disability rating thereafter is granted for the Veteran’s lumbar spine strain with degenerative changes. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura C. Owens 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.