Citation Nr: 21022740 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 14-07 435 DATE: April 19, 2021 ORDER Entitlement to a rating in excess of 10 percent for osteoarthritis of the lumbar spine is denied. FINDING OF FACT The Veteran’s osteoarthritis of the lumbar spine is manifested by no worse than forward flexion of the thoracolumbar spine to 80 degrees. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for osteoarthritis of lumbar spine 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 had active service from October 2006 to September 2010. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision. In December 2017 the Board remanded the case to the RO for further development. The Board remanded the case once more in January 2020 for further development when it found the July 2019 VA examination was internally inconsistent and inadequate for rating purposes. Accordingly, the Board remanded the matter for a new VA examination and evaluation of the entire claims file. It has returned for adjudication. Increased Rating Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. This Rating Schedule is primarily a guide in the rating of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran’s disability claim may require re-ratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Disabilities of the spine, including for Diagnostic Code 5242, are rated under the General Rating Formula for Disease and Injuries of the Spine. 38 C.F.R. § 4.71a. A 100 percent rating is provided for unfavorable ankylosis of the entire spine. A 50 percent rating is provided for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is provided for forward flexion of the thoracolumbar spine to 30 degrees or less, with favorable ankylosis of the entire thoracolumbar spine. A 20 percent rating is provided 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 10 percent rating is provided 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. When rating diseases and injuries of the spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30degrees. Normal combined range of motion of the thoracolumbar spine is 240degrees. Normal ranges of motion for each component of spinal motion provided are the maximum usable for calculating the combined range of motion. 38 C.F.R. § 4.71a, Plate V, General Rating Formula for Diseases and Injuries of the Spine, Note 2. The rating criteria for intervertebral disc syndrome (IVDS) require rating of the disability either on the total duration of incapacitating episodes resulting from intervertebral disc syndrome over the past 12 months, or by combining under 38 C.F.R. § 4.25 separate ratings of its chronic orthopedic and neurologic manifestations with rating for all other disabilities, whichever method results in the higher rating. A 20 percent rating is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of least four weeks but less than six weeks during the past 12 months. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Id. Such evidence may include facial expression, such as wincing, muscle spasm, and crepitation. See 38 C.F.R. § 4.59. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45. Consideration of a higher rating for functional loss, to include during flare ups, due to these factors accordingly is warranted for Diagnostic Codes predicated on limitation of motion. DeLuca v. Brown, 8 Vet. App. 202 (1995). An adequate orthopedic examination should record the range of motion for pain on active motion and passive motion and in weight bearing and non-weight bearing, address the necessary findings to evaluate functional loss during flare-ups, or clearly explain why the required testing cannot be completed or is not necessary. See Correia v. McDonald, 28 Vet. App. 158 (2016). An examination does not need to be conducted during an actual flare-up in order to account for additional functional impairment. Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). Instead, examiners are asked to estimate the functional impairment experienced during a flare-up, considering all competent evidence of functional loss that is available in the record. Id. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. However, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3. Entitlement to a rating in excess of 10 percent for osteoarthritis of the lumbar spine. The Veteran contends that his osteoarthritis of the lumbar spine warrants a disability rating higher than currently assigned. A VA examination in May 2013 reflect a diagnosis of mild osteoarthritis. The Veteran described flare ups as causing difficulty with chores involving standing such as cooking and doing yard work as well as difficulty with prolonged sitting. The examiner found normal flexion, no objective evidence of painful motion, normal extension with no objective evidence of painful motion, normal right and left lateral flexion with no objective evidence of painful motion, and normal right and left lateral rotation with no objective evidence of painful motion. The found no functional loss following repetitive-use testing. The examiner found the Veteran did not have radicular pain or other signs or symptoms due to radiculopathy. Following the May 2013 examination, a June 2013 rating decision awarded the Veteran service connection for osteoarthritis of the lumbar spine with an evaluation of 0 percent effective September 19, 2012. Following the June 2013, rating decision the Veteran filed a Notice of Disagreement with the rating of 0 percent for osteoarthritis of the lumbar spine, stating that he experienced pain in the lumbar region when sitting or standing for longer than 1 hour. The RO then increased the Veteran’s rating to 100 percent effective September 19, 2012 citing the Veteran’s reports that he received several steroid injections during military service and reported left mid thoracic pain. In February 2014, the Veteran filed a Form 9 requesting the 10 percent rating for osteoarthritis of the lumbar spine be raised to 20 percent. In the form 9 the Veteran stated “there is not a day that goes by where I don’t experience pain in my back. Some nights I’m not able to fall asleep for several hours and when I’m able to fall asleep I wake up periodically all due to the pain caused by the disc deformity and the lumbar osteoarthritis.” January 2015 CAPRI records show the Veteran stated he was attempting to join the Army Reserves, but was rejected based on findings noting his back pain prevents him from successfully following a physically active vocation in civilian life. A December 2017 Board decision noted the Veteran’s medical record suggested a worsening of his disability. Additionally, the Board decision noted the Veteran’s correspondence showing his attempt to join the Army Reserves that was denied due to his disability. Furthermore, the Board noted there may be outstanding medical records pertaining to the Veteran’s low back disability. Accordingly, the Board remanded the case to request any outstanding treatment records for the Veteran’s lumbar spine disability, and to schedule the Veteran for a VA examination to determine the severity of the Veteran’s service-connected lumbar spine disability. A July 2019 VA Examination was given following the Board’s remand. The July 2019 examiner stated the Veteran did not experience flareups of the thoracolumbar spine. The examiner stated the Veteran reported functional loss including inability to walk more than a quarter mile, inability to stand for longer than 60 minutes, inability to sit for longer than 60 minutes, sleep interruptions, difficulty driving long distance, inability to do lawn work and home repairs, and inability to lift more than 30 pounds. The July 2019 examination documented forward flexion 0 to 80 degrees, extension 0 to 10 degrees, right lateral flexion 0 to 30 degrees, left lateral flexion 0 to 30 degrees, right lateral rotation 0 to 0 degrees, and left lateral rotation 0 to 0 degrees. The examination noted the Veteran was unable to rotate due to pain, and unable to do further range of motion due to pain, and that the Veteran’s range of motion itself contributed to a functional loss. Forward flexion, extension right lateral flexion and left lateral flexion all exhibited pain. Additionally, the Veteran exhibited pain with weight bearing and localized tenderness related to the thoracolumbar spine. The Veteran was unable to perform repetitive use testing with at least three repetitions due to pain. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The examination found the Veteran had muscle spasm, not resulting in abnormal gait or abnormal spinal contour, no radiculopathy, ankylosis or IVDS. The examiner noted the examination was not conducted during a flare up, but the range of motion deficits due to pain limitations noted during examination would likely increase to an unknown degree. In conclusion, the examiner found the level of severity has worsened with worsening of functional abilities. The Veteran was given a February 2020 VA examination following a January 2020 Board decision that found the July 2019 examination needed further clarification due to internal inconsistency. The February 2020 examination found the Veteran reported flare-ups exhibited by throbbing pain as well as functional loss due to pain including decreased range of motion, increased pain with standing and sitting, and an inability to stand or walk for prolonged periods of time. In the February 2020 VA examination, the VA examination found abnormal range of motion with forward flexion 0 to 75 degrees, extension 0 to 20 degrees, right lateral flexion 0 to 25 degrees, left lateral flexion 0 to 25 degrees, right lateral rotation 0 to 25 degrees, and left lateral rotation 0 to 25 degrees. The examination found pain with weight bearing as well as localized tenderness or pain associated with the lumbar region. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional functional loss of function or range of motion after three repetitions. The examination found that pain, weakness, and lack of endurance significantly limits functional ability with repeated use over time. The VA examiner found the extent of range of motion lost, however, could not be deduced without resorting to mere speculation. Similarly, the VA examiner found pain, weakness, and lack of endurance limited functional ability during a flare-up, however the examination was not performed during a flareup, thus the extent of range of motion lost during these episodes could not be deduced without resorting to mere speculation. The examination found the Veteran had muscle spasm of the thoracolumbar spine not resulting in abnormal gait or abnormal spinal contour, and no guarding. Additionally, the examiner found weakened movement due to muscle or peripheral nerve injury, disturbance of locomotion, interference with sitting, and interference with standing. Based on the evidence of record, the Board finds the Veteran’s service-connected lumbar spine disability is manifested by no worse than forward flexion of the thoracolumbar spine to 60 degrees or greater. The overall evidence of records does not demonstrate combined range of motion of the thoracolumbar spine of 120 degrees or less, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Nor is there any evidence of ankylosis of the thoracolumbar spine or incapacitating episodes of IVDS. Therefore, the claim for rating in excess of 10 percent for osteoarthritis of the lumbar spine must be denied. The Board notes that an adequate discussion of functional loss includes consideration of manifest functional loss during flare-ups. Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Flare-ups must be quantifiable and must result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because VA regulations under 38 C.F.R. § 3.344(a) and 38 C.F.R. § 4.1 address the stabilization of ratings, flare-ups must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. With that in mind, consideration has been given to the Veteran’s reports at his February 2020 VA examination that he experiences flare-ups exhibited by throbbing pain, decreased range of motion, increased pain with standing and sitting, and inability to stand or sit for long periods of time. However, such should not warrant a higher valuation. The reported flare-ups are not shown to additionally limit function in a quantifiable way and are not of such length or duration that a staged rating would not violate the rule regarding stabilization of ratings. The February 2020 VA examiner found the examination was neither medically consistent nor inconsistent with the Veteran’s reported functional loss during flare ups. In sum, the Board finds the degrees of disability specified are considered adequate to compensate for considerable loss of working time for exacerbations or illness proportionate to the severity of the several grades of disability. Here, the reports of exacerbations or flare-ups are not quantifiable nor of sufficient duration to warrant a change in evaluation without violating the spirit of Mitchell and the provision of 28 C.F.R. § 4.1 and 38 C.F.R. § 3.344(a) regarding stabilization of ratings. The Board acknowledges the Veteran is competent to report observable symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). He is not, however, competent to identify a specific level of disability. Competent evidence concerning the nature and extent of the Veteran’s service-connected disability has been provided by VA medical professionals who have examined him. The Board affords the available VA medical findings of record greater weight then the Veteran’s complaints as to symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). M. Mills Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.N. Bush, 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.