Citation Nr: 21024520 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 15-06 243A DATE: April 23, 2021 ORDER Entitlement to a rating in excess of 20 percent for a low back disability is denied. FINDING OF FACT A service-connected back disability was not manifested by thoracolumbar spine flexion limited to 30 degrees or less, ankylosis, or incapacitating episodes requiring bed rest prescribed by a physician. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 20 percent for a low back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.45, 4.59, 4.71a, Diagnostic Codes 5237-5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1986 to June 1998. In September 2020, the Board remanded this case for additional development. The Board finds that there has been substantial compliance with the remand requests. Stegall v. West, 11 Vet. App. 268 (1998). Increased Ratings Disabilities of the spine are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. Intervertebral disc syndrome is rated under the General Formula for Rating Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under the General Rating Formula for Rating 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, the 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 an abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a. 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. 38 C.F.R. § 4.71a. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine of 30 degrees or less; or, unfavorable 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 assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Any associated objective neurologic 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 30 degrees. Diagnostic Code 5243 provides that intervertebral disc syndrome is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that a 10 percent rating is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 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, Note (1). The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion may be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. 38 C.F.R. § 4.59; Powell v. West, 13 Vet. App. 31 (1999); Hicks v. Brown, 8 Vet. App. 417 (1995). VA examinations must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016); 38 C.F.R. § 4.59. The spine has no opposite joint. The Veteran is competent to report symptoms and experiences observable by the senses. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). Entitlement to a rating in excess of 20 percent for a low back disability The Veteran asserts that a service-connected low back disability is more severe than contemplated by the 20 percent rating assigned. VA outpatient records show ongoing complaints of and treatment for back pain. An April 2014 VA examination diagnosed degenerative arthritis of the lumbar spine and intervertebral disc syndrome (IVDS). The Veteran reported back pain and denied flare-ups. Objectively, forward flexion was measured to 65 degrees with painful motion beginning at 45 degrees; extension and right and left lateral flexion were measured to 10 degrees with painful motion beginning at 10 degrees; right and left lateral rotation were measured to 15 degrees with painful motion beginning at 15 degrees. Repetitive use testing did not result in an additional loss of motion, but less movement than normal, excess fatigability, pain on movement, and interference with sitting, standing, and or weight-bearing contributed to functional loss. Ankylosis was not noted. The Veteran experienced guarding that did not result in an abnormal gait or abnormal spinal contour. Muscle strength testing and sensory examination were normal for both lower extremities. There was moderate pain and paresthesias of the left lower extremity. The examiner noted IVDS with no incapacitating episodes. An April 2019 VA examination diagnosed degenerative arthritis and lumbosacral strain. The Veteran reported back pain which limited the ability to sit, stand, bend, and lift. The Veteran denied flare-ups. Objectively, forward flexion was measured to 60 degrees; extension was measured to 15 degrees; right and left lateral flexion were measured to 20 degrees; and right and left lateral rotation were measured to 20 degrees. Pain was observed with forward flexion and extension but did not result in or cause additional functional loss. There was evidence of pain with weight bearing. After repetitive use testing, forward flexion was measured to 55; extension was to 10 degrees; and bilateral lateral flexion and rotation were to 20 degrees. Pain significantly limited functional ability with repeated use over a period of time. Pursuant to the September 2020 Board remand, a November 2020 medical opinion was provided to address whether range of motion measurements for active motion, passive motion, weight-bearing, and non-weight-bearing could be estimated for the April 2014 VA back examination. The examiner stated that since testing was not performed in April 2014, it was not possible to retrospectively determine passive range of motion of the lumbar spine or range of motion in non-weightbearing based on the April 2014 examination report. The examiner explained that it would be speculative to do so since “there [was] no mathematical formula to somehow calculate non weight bearing or passive range of motion measurements based upon the weight bearing active range of motion measurements on the 4/7/2014 lumbar DBQ examination… There [was] also no general estimate based on clinical experience where an "educated guess" may be made either. The reason for this [was] that most range of motion limits are based on pain. Pain is subjective in nature… Given that pain, which is the primary reason for range of motion limitations, is highly variable within a patient, as well as between patients, makes educated guessing speculative in nature.” The Board notes that although the April 2014 VA examination was determined to be inadequate as it did not measure active and passive and weight-bearing motion, the objective findings such as IVDS, radiculopathy, and measurements which were performed by the examiner, are still reliable and relevant in determining the level of severity of the back disability. The Board finds that a service-connected back disability has not more nearly approximated a rating in excess of 20 percent at any time during the course of the appeal. The next higher rating requires forward flexion of the thoracolumbar spine limited to 30 degree or less; or favorable ankylosis of the entire thoracolumbar spine, which is not shown. At no time has forward flexion of the lumbar spine limited to 30 degrees or less. Forward flexion, at worst, was limited to 55 degrees after repetitive use testing. The evidence does not show ankylosis. The evidence shows continued complaints of back pain and functional impairment. However, there is no evidence which shows functional impairment that more nearly approximates the range of motion criteria to support a higher rating under the General Rating Formula, even considering the Veteran's subjective complaints. Even considering additional limitation of motion or function of the spine due to pain on both active and passive motion, in weight-bearing and non-weight-bearing, or other symptoms such as weakness, fatigability, or incoordination, the evidence still does not show that any additional factors approximate thoracolumbar flexion to 30 degrees or less or favorable ankylosis of the thoracolumbar spine. The Board finds that the Veteran’s symptoms are fully contemplated in the current 20 percent rating assigned. The Board notes the 2014 finding of IVDS and the Veteran’s reports of incapacitating episodes. However, the Board finds that there is no evidence of incapacitating episodes of IVDS as defined by VA regulation. Specifically, incapacitating episodes are not shown to result in prescribed bed rest and treatment by a physician. The Veteran is service-connected for bilateral lower extremity radiculopathy. The Board has considered whether the service-connected back disability manifests with any other associated objective neurologic abnormalities so as to warrant a separate rating under an appropriate diagnostic code. There is no evidence, medical or lay, that shows any neurologic abnormalities other than bilateral lower extremity radiculopathy. Therefore, a separate rating for other neurological abnormalities is not warranted. The Board has considered the Veteran’s statements. The Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran is not competent to identify a specific level of disability according to the appropriate diagnostic codes. Determining the nature and severity of a back disability, the range of motion of the spine, and the prescription for bed rest require medical training and expertise that the Veteran has not shown he possesses. Determining whether a back disability meets some of the criteria for a higher rating requires medical diagnostic testing. Competent evidence concerning the severity of a service-connected back disability has been provided by medical professionals who have examined the Veteran during the current appeal, reviewed the claims file, considered the Veteran’s reports and medical history, and made pertinent clinical findings. The Board finds the objective medical evidence to be the most persuasive and outweighs the Veteran's statements in support of the claim. Accordingly, the Board finds that a rating in excess of 20 percent for a low back disability is not warranted. The Board finds that the preponderance of the evidence is against the claim for increase and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.O., 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.