Citation Nr: 21025600 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 17-49 998A DATE: April 28, 2021 ORDER Entitlement to a rating in excess of 20 percent for lumbosacral sprain is denied. FINDING OF FACT Throughout the appellate period, the Veteran’s lumbosacral sprain has manifested as forward flexion limited to no less than 40 degrees. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for lumbosacral sprain have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3, 4.71a, Diagnostic Code (DC) 5237 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2008 to November 2010. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in March 2020. A transcript of the hearing is associated with the electronic claims file. The Board issued a prior remand on this claim in June 2020. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Pertinent regulations also provide that it is not necessary for all of the individual criteria to be present as set forth in the Rating Schedule, but that findings sufficient to identify the disability and level of impairment be considered. 38 C.F.R. § 4.21. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Id. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.    The Veteran’s lumbosacral sprain is rated under DC 5237 for lumbosacral or cervical strain, which falls under the general rating formula for diseases and injuries of the spine.  Under 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, for ratings for the thoracolumbar 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 assigned if there is forward flexion of the thoracolumbar spine of 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating is assigned if there is unfavorable ankylosis of the entire thoracolumbar spine. Finally, a 100 percent rating may be assigned if there is unfavorable ankylosis of the entire spine.   For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees.  1. Entitlement to a rating in excess of 20 percent for lumbosacral sprain. The Veteran was initially granted service connection for a lumbosacral sprain in a November 2010 rating decision, evaluated at 20 percent, effective November 3, 2010. In conjunction with a request for entitlement to a total disability rating based on individual unemployability (TDIU), the Veteran was given a VA examination for his lumbosacral sprain in March 2016. Based on this examination, the RO issued an April 2016 rating decision continuing to evaluate the Veteran’s lumbosacral sprain at 20 percent. The Veteran filed a notice of disagreement in June 2016 and subsequently appealed this issue up to the Board. In June 2020, the Board remanded the claim back to provide the Veteran with another VA examination for his lumbosacral sprain, finding the March 2016 examination did not comply with recent caselaw. It should also be noted that the Board granted entitlement to a TDIU in the June 2020 decision. In January 2021 the Veteran was given another VA examination for his back. Here, the examiner diagnosed a lumbosacral sprain and noted moderate flareups that occur once a month for two weeks and cause increased pain and numbness down the Veteran’s legs as well as problems with lifting and pushing. The examiner found the Veteran’s forward flexion to be limited to 50 degrees, limiting his ability to lift, stand, or walk for any distance. Pain was noted on exam at rest and nonmovement in all ranges of motion. The Veteran had moderate pain on palpation of the mid lumbar spine. With regard to repetitive use, repeated use over time, and during flareups, the examiner estimated that pain limited the Veteran’s forward flexion to only 45 degrees. No guarding or muscle spasm was noted, nor was muscle atrophy or ankylosis found. Finally, the examiner indicated that the Veteran had objective evidence of pain when the spine was non-weight bearing. The Board finds this examination to be in compliance with the June 2020 remand directives. The Board also finds this examination to be consistent with the already assigned 20 percent rating under DC 5237 for the Veteran’s lumbosacral sprain. After repetitive use, repeated use over time, and during flareups, the January 2021 examiner estimated the Veteran’s forward flexion to be limited to only 45 degrees. However, the Board notes that the March 2016 examiner found the Veteran’s forward flexion to be limited to 40 degrees, with no additional loss of function following repetitive use or during flareups, and failing to provide an estimate of range of motion loss following repeated use over time. Nevertheless, forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees warrants a 20 percent rating under DC 5237. The next higher rating of 40 degrees is only warranted when the Veteran’s forward flexion is limited to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. The Veteran has not shown that he meets such criteria. In fact, neither the Veteran nor his representative has provided any additional argument or evidence in support of this claim. Moreover, the Board acknowledges that pain on motion must be taken into account when rating a disability based on limitation of motion, but pain alone does not warrant a higher disability rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain alone does not constitute functional loss, but is just one fact to be considered when evaluating functional impairment). In order to assign a higher rating based on functional loss due to pain, the pain “must actually affect some aspect of ‘the normal working movements of the body.’” Id. at 43 (quoting § 4.40). In Mitchell, the Court agreed that pain alone as a basis for a higher rating would produce such “absurd results” as for example where a claimant who experiences very slight pain throughout the range of motion of the knee would receive a 50 percent disability rating under DC 5261 and a 30 percent disability rating under DC 5260, whereas a claimant who experiences actual limitation of flexion to 30 degrees and limitation of extension to 20 degrees would only receive disability ratings of 20 percent and 30 percent respectively. Id. The preponderance of the evidence is against the claim. Accordingly, entitlement to a rating in excess of 20 percent for lumbosacral sprain is denied. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Ruiz, 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.