Citation Nr: 21021379 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 13-14 502 DATE: April 12, 2021 ORDER A rating in excess of 10 percent for lumbar spine, status post microdiscectomy at L5-S1, is denied. FINDING OF FACT The Veteran’s lumbar spine, status post microdiscectomy at L5-S1, was manifested by forward flexion limited to no worse than 70 degrees, no ankylosis, and no spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for lumbar spine, status post microdiscectomy at L5-S1, 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. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1999 to November 30, 2008. On appeal is an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for lumbar spine, status post microdiscectomy at L5-S1, and assigned a 10 percent rating effective December 1, 2008 (the day after the Veteran’s discharge from service). A hearing via videoconference was held in this matter in June 2019 before the undersigned Veterans Law Judge, and a transcript of the proceedings is associated with the claims file. In November 2019, the Board of Veterans Appeals (Board) remanded the matter for additional development, finding a new VA examination was necessary since the last examination was conducted in 2009. The requested development has been completed and the matter returned to the Board for appellate review. Duty to Notify and Assist The Veteran has not raised any issues with the duty to notify. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. Also of record are VA examinations conducted in March 2009 and December 2019. The Veteran has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA’s duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately compensate the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31 (1999). Entitlement to a rating in excess of 10 percent for lumbar spine, status post microdiscectomy at L5-S1. Spine disabilities are rated pursuant to the criteria of a General Rating Formula for Diseases and Injuries of the Spine governing Diagnostic Codes 5235 to 5243, set forth in 38 C.F.R. § 4.71a. Under the General Rating Formula, a 10 percent disability rating is assigned 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 disability rating is assigned 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 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 rating is warranted for unfavorable ankylosis of the entire spine. In light of the rating criteria for the thoracolumbar spine, it is necessary to show ankylosis for a rating higher than 40 percent. It should also be noted that the levels listed above apply to Diagnostic Codes 5235 through 5243, unless the disabilities rated under Diagnostic Code 5243 are evaluated separately under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, as set forth in 38 C.F.R. § 4.71a, Diagnostic Code 5243. Here, the Veteran underwent a general VA examination in March 2009. As it relates to her lumbar spine, the examiner noted the Veteran reported being diagnosed with status post lumbar laminectomy with microdiscectomy L5-S1. She reported the condition occurred as a result of high impact "catapult and trap" exposure on aircraft carrier and worsened with physical training activities. The Veteran reported her current symptoms were stiffness; numbness; and left foot weakness. The examiner indicated that the examination revealed no evidence of radiating pain on movement; muscle spasm was absent; there was no ankylosis; and, there were no signs of intervertebral disc syndrome (IVDS). Flexion was measured to 90 degrees. Private treatment records from various providers are associated with the Veteran’s claim file. In summary, these records reflect the Veteran was treated for low back pain over the years, with treatment that included physical therapy and steroid injections. An August 2009 physical therapy note from Performance Therapy Center reflects the Veteran had physical therapy and as part of her visit, flexion was measured at 70 degrees. A July 2010 record from a private physician reflects the Veteran was treated with facet joint injections and dorsal ramus blocks. A February 2017 record from Medstar St. Mary’s Hospital reflects the Veteran underwent a transforaminal epidural steroid injection. Lay evidence is also associated with the Veteran’s claim file. In her substantive appeal, the Veteran stated she seeks a 100 percent rating for surgery necessitating at least one month of convalescence, stating she had 42 days of convalescence prescribed by primary surgeon in San Diego, and three weeks of bedrest is noted in Operation Report dated September 30, 2008. The Veteran also finds fault with the March 2009 VA examination, stating the examiner had not received any of her records prior to her examination; she also stated that the examiner was not qualified and did not use a goniometer to measure her range of motion. The Veteran testified at a Board Hearing in June 2019. Again, the Veteran stated that the March 2009 VA examiner did not sufficiently develop or investigate the nature and severity of her injuries; and that the severity of her back condition was not properly measured by using a goniometer. She stated she had a physical therapy appointment within two weeks of her March 2009 exam, with a therapist who actually used a goniometer, so those records contain her actual measurements. She stated further that she throws her back out 6 to 7 times per year. The Veteran underwent a final VA examination of her lumbar spine in December 2019. The examiner noted current diagnoses of: degenerative disc disease, L4-S1, with microdiscectomy at L5-S1, lumbar spine, residual range of motion loss; and left lower extremity radiculopathy. The Veteran reported she was a Naval Flight Officer flying in F18 Super Hornets and F14 Tomcats and states the high G-force turns caused her to eventual develop lower back issues. She stated she started to get symptoms of drop foot on the left lower extremity. She underwent lumbar micro discectomy at L5-S1 in 2008. Post-operatively she underwent physical therapy, but still has continued to have progressive back issues. Her treatment has consisted of surgery in 2008; facet joint blocks; physical therapy; Ibuprofen; TENS unit; yoga; chiropractor therapy; acupuncture; and, aqua therapy. As for current symptoms, the Veteran reported a constant 2 to 3 out of 10 of lower back pain and intermittent paresthesias of the lower extremities described as burning sensations in the gluteal region, feet, and lower back. The Veteran reported flare ups, which she described as “pain that can be worse at random times with different activities, like sometimes lifting a laundry basket.” Functional loss or impairment was described as “I used to whitewater kayak and can’t do that anymore; I used to hike and can’t do the distance I used to be able to do; I can’t run anymore; I can’t ride a bicycle for long periods because of the lower back pain; when I am driving, I have a hard time doing so for prolonged periods; and, I have to sit and stand off-and-on while at work.” Forward flexion was measured to 90 degrees, with no additional loss after repetitive-use testing. Forward flexion during flare ups was 80 degrees. Pain and lack of endurance were noted to cause functional loss over time. The examiner stated there was no guarding or muscle spasm; no ankylosis; and, no IVDS. The examiner noted the Veteran does have radiculopathy of the left lower extremity. No other factors contribute to disability. Upon review of the relevant evidence, the Board finds that the Veteran’s lumbar spine symptoms are consistent with the 10 percent rating currently assigned, based on the degree of forward flexion, which has been shown to be 70 degrees at its worst during the period on appeal, with no ankylosis shown and no guarding or muscles spasm resulting in abnormal gait or abnormal spinal contour. To obtain a higher rating for the Veteran’s lumbar spine disability, it is necessary to show forward flexion between 30 to 60 degrees; muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour; or ankylosis. Here, however, there is simply no evidence that the Veteran’s forward flexion was ever 60 degrees or less, even when pain on motion is considered, or that she has had muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour, or that she had ankylosis of the lumbar spine at any point during this appeal period. Thus, the Board finds that a higher rating is not warranted for the Veteran’s lumbar spine, status post microdiscectomy at L5-S1. The Board has also considered the lay statements from the Veteran, including her reports of pain, but finds that the pain does not amount to forward flexion of 60 degrees or less, or ankylosis of the thoracolumbar spine, or muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour. In reaching this conclusion, the Board notes that lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, in this case, such an opinion falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). To the extent that the Veteran contends that her lumbar spine disability is more severe than currently evaluated, while the Veteran is competent to describe her symptoms, she is not competent to report that her lumbar spine disability is of sufficient severity to warrant a certain percent evaluation under VA’s criteria for rating disabilities of the lumbar spine, as such an opinion requires medical expertise which she does not possess. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372. The Board notes that the Veteran has already been awarded service connection for radiculopathy of her left lower extremity and right lower extremity associated with her lumbar spine disability. No other neurological disabilities have been diagnosed. Finally, the Board has considered the Veteran’s request for a temporary 100 percent rating for her September 2008 surgery and convalescence, but finds this occurred during her active duty service, and that she is not service connected for her lumbar spine disability until December 1, 2008 – the day after her discharge from service. In sum, the preponderance of the evidence does not support a disability rating in excess of 10 percent for the Veteran’s service-connected lumbar spine, status post microdiscectomy at L5-S1. The claim is denied. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Jiggetts 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.