Citation Nr: 21020868 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 13-18 168 DATE: April 8, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for a lumbar spine disability is denied. FINDING OF FACT The Veteran’s lumbar spine disability is manifest by pain, and forward flexion limited to 50 degrees, at worst. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from December 1964 to December 1967, and in the Air Force from March 1977 to September 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before a Veterans Law Judge on his VA Form 9 dated in June 2013. In letters dated in August 2018 and September 2018, the Veteran and his representative withdrew the hearing request. Accordingly, the hearing request is deemed withdrawn. 38C.F.R. §20.704 (e). This matter was previously remanded by the Board in October 2018. There was substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 1. Entitlement to a disability rating in excess of 20 percent for a low back disability The Veteran seeks a higher disability rating for his service-connected diffuse spondylosis with degenerative disc space narrowing of the lumbar spine. He filed an increased rating claim on May 13, 2010. The Board notes that from January 21, 2014, until April 1, 2014, the Veteran was assigned a 100 percent rating for his lumbar spine disability based on surgical or other treatment necessitating convalescence. Therefore, the discussion below will not pertain to the period during which the Veteran received a 100 percent rating. The Veteran’s spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5242-5237 as 20 percent disabling. A hyphenated diagnostic code is used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. The additional diagnostic code is shown after the hyphen. Diagnostic Code 5242 addresses degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome. Diagnostic Code 5237 addresses lumbosacral or cervical strain. Both codes are rated under the General Rating Formula for Diseases and Injuries of the Spine. 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). 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 was afforded VA examinations in June 2010, April 2019, and October 2019. The Board notes that range of motion measurements were not obtained at the October 2019 examination, as the Veteran was unable to perform testing due to Alzheimer’s. However, given that only 6 months passed between the April and October 2019 examinations, the Board finds the April 2019 examination report is sufficient to assess the Veteran’s more recent reports of worsening. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the Veteran’s lumbar spine disability. To warrant a 40 percent rating, the evidence must show forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The Veteran reported having pain that radiated down his legs, and is exacerbated by physical activity. Additionally, he described experiencing episodic flare-ups every two to three months of moderate severity that cause increased stiffness and swelling. During the period on appeal, at worst his lumbar spine forward flexion was limited to 50 degrees. The April 2019 VA examiner determined that the examination was medically consistent with the Veteran’s statements describing functional loss during flare-ups and repetitive use over time. The Veteran did not have ankylosis of the lumbar spine, and there was no evidence of pain on non-weight bearing and weight-bearing testing. The Board acknowledges the Veteran’s lay reports of pain and flare-ups. However, even considering the Veteran’s lay reports, the symptoms would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Regarding neurological impairment, the Veteran has already been granted service connection for bladder incontinence, encopresis, radiculopathy of the bilateral lower extremities, and femoral nerve impairment of the bilateral lower extremities. The lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. (Continued on the next page)   Based on the foregoing, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for a lumbar spine disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Miller, 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.