Citation Nr: 21025528 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 14-32 185 DATE: April 28, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for degenerative arthritis of the lumbar spine is denied. FINDING OF FACT The degenerative arthritis of the Veteran’s lumbar spine is manifest by a limitation of motion permitting forward flexion to more than 60 degrees, a total combined range of motion greater than 120 degrees, and without muscle spasm, guarding, or tenderness resulting in abnormal gait or spinal contour. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for degenerative arthritis of the lumbar spine 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 had periods of active service from November 1993 to October 1999 and from May 2007 to November 2009. This current matter comes before the Board of Veterans Appeals (Board) on appeal from a June 2011 rating decision. In June 2018, the Veteran testified at a hearing before a Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. In September 2018 and October 2019, the Board remanded this appeal for further evidentiary development. In February 2021, the Veteran was advised that the VLJ who heard his testimony in June 2018 was no longer available to participate in this decision. The Veteran was offered the opportunity to have an additional hearing. As the Veteran did not request an additional hearing, the Board will proceed with this decision. Entitlement to a disability rating in excess of 10 percent for degenerative arthritis of the lumbar spine The Veteran contends that he is entitled to a higher rating because of the pain and stiffness that he feels in his low back. This service-connected disability is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. According to 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. 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. DeLuca v. Brown, 8 Vet. App. 202 (1995); 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. Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (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. In the current appeal, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the service-connected degenerative arthritis of the lumbar spine. The Board acknowledges the Veteran’s lay reports of symptoms and the findings of functional loss due to pain and stiffness, especially after sitting for a long period time. However, even considering the Veteran’s lay reports of symptoms and the noted findings of functional loss, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating 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. Also, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The most severe limitation of his lumbar range of motion during the appeal period was recorded in the March 2014 VA examination. At that time, he was able to flex his lumbar spine to 75 degrees, and his combined range of motion was more than 120 degrees. All other examinations demonstrate greater ranges of motion. Similarly, the record is devoid of any finding of muscle spasm or guarding that resulted in abnormal gait or spinal contour. Consequently, he does not meet the criteria for a 20 percent disability rating. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS, and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for the service-connected degenerative arthritis of his lumbar spine. 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. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Steven H. Johnston, 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.