Citation Nr: 21026858 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 14-13 621 DATE: May 4, 2021 ORDER A rating in excess of 20 percent for lumbar strain with degenerative changes (lumbar spine condition) prior to September 9, 2014 is denied. REMANDED Entitlement to a rating in excess of 20 percent from December 1, 2014, to October 1, 2020, and in excess of 10 percent from October 1, 2020, for a lumbar spine condition is remanded. FINDING OF FACT For the period prior to September 9, 2014, the Veteran's lumbar spine condition was not manifested by forward flexion of the thoracolumbar spine 30 degrees or less or unfavorable ankylosis of the entire thoracolumbar spine. CONCLUSION OF LAW For the period prior to September 9, 2014, the criteria for a rating in excess of 20 percent for a lumbar spine condition 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 January 1967 to October 1970. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in May 2017. A transcript of that hearing is associated with the claims file. This case was previously remanded by the Board of Veterans' Appeals (Board) in December 2017. In a June 2020 rating decision, the Agency of Original Jurisdiction (AOJ) reduced the rating for the Veteran's lumbar spine disorder from 20 percent to 10 percent, effective October 1, 2020. He was notified of this decision in July 2020. The Veteran has not yet requested review of this decision; therefore, the ratings for the lumbar spine disorder have been characterized as indicated above. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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. It is important that when evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. It is the intent of the schedule to recognize painful motion with joint or periarticular pathology as productive of disability. It is also the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Entitlement to a rating in excess of 20 percent for lumbar strain with degenerative changes prior to September 9, 2014. The Veteran's lumbar spine disorder is currently rated under DC 5242 for degenerative arthritis, degenerative disc disease other that intervertebral disc syndrome (IVDS) pursuant to the General Rating Formula for Diseases and Injuries of the Spine. Under this rating criteria, a 10 percent disability rating is warranted for forward flexion of the thoracolumbar (lumbar) 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 disability rating is assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. As explained below, there is no evidence that the Veteran has IVDS. As such, the specific rating criteria that pertain to IVDS will not be considered herein. 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. 38 C.F.R. § 4.71a, Note (2). The Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39- 40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit-of-the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § § 3.102. The Veteran's claim for an increased rating for the lumbar spine disorder stems from an informal claim received in February 2011. At the time of the filing of that claim, the Veteran's lumbar spine disorder was assigned a 20 percent rating. The lumbar spine disorder has since been assigned a 100 percent rating from September 9, 2014, a 20 percent rating from December 1, 2014, and a 10 percent rating from October 1, 2020. The period where the Veteran is assigned a 100 percent rating is not for consideration, as that is the maximum rating available. The matter of the ratings to be assigned from December 1, 2014, is addressed in the remand section below. As for the period prior to September 9, 2014, the Veteran contends that a higher rating in excess of 20 percent is warranted. For the reasons discussed more fully below, the Board finds that an increased rating in excess of 20 percent is not warranted prior to September 9, 2014. In December 2011, the Veteran underwent a VA examination to evaluate his lumbar spine disorder. The Veteran reported low back pain and an inability to bend down. He also denied having any flare-ups and noted instead that he had constant chronic low back pain of varying degrees. Range of motion testing was performed and yielded measurements of 70 degrees for forward flexion with objective evidence of painful motion at 60 degrees, 15 degrees for extension including with painful motion, 30 or more degrees for right and left lateral flexion with no objective evidence of painful motion, and 25 degrees for right and left lateral rotation including with painful motion. The examiner indicated there was no additional functional loss found after repetitive use testing and the Veteran did not have any functional impairment of the thoracolumbar spine. Localized tenderness or pain on palpation for the joints and/or soft tissue of the thoracolumbar spine was noted. Additionally, guarding and/or muscle spasms were present, but did not result in abnormal gait or contour. Muscle strength testing returned all normal results and no muscle atrophy was found. Deep tendon reflex testing was performed, which indicated that reflexes were absent in the right and left knee but normal in the right and left ankle. A straight leg raising test was also performed and yielded negative results for both the right and left leg. No radicular symptoms or IVDS was noted. It was also noted that the Veteran did not use any assistive devices. Finally, the examiner described the Veteran's functional impact in terms of the Veteran's own report, which was that he could not lift, bend, or stand or sit for prolonged periods of time. See December 2011 VA Examination. VA treatment records prior to September 9, 2014 document continued complaints and treatment for chronic low back pain. See VA Treatment Record received August 2019. Private treatment records for the period show continued complaints of low back pain, a diagnosis of lumbar stenosis with neurogenic claudication, and indications that the Veteran was scheduled for spinal surgery to treat his lumbar spine condition. See Private Treatment Record received November 2014. The Veteran also submitted multiple lay statements from individuals indicating that the Veteran had difficulty sitting or standing for a period of time. Additionally, the statements contend that it was painful for the Veteran to walk a short distance without experiencing discomfort. Finally, the statements allege that the Veteran was not active due to his constant back pain. See Buddy/ Lay Statements received September 2011. After reviewing the foregoing, the Board concludes that, for the period prior to September 9, 2014, a rating in excess of 20 percent is not warranted for the Veteran's service-connected lumbar spine condition. Chiefly, even with consideration of pain, the competent evidence does not demonstrate forward flexion of the thoracolumbar spine of 30 degrees or less, favorable/unfavorable ankylosis of the entire thoracolumbar spine, or IVDS with incapacitating episodes requiring bed rest prescribed by a doctor. Thus, the Board finds that the Veteran's low back disorder was not manifested by complaints or objective findings or functional impairment that would warrant a rating in excess of 20 percent. Accordingly, the benefit-of-the-doubt rule does not apply, and the claim for a rating in excess of 20 percent, prior to September 9, 2014, must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 49. REASONS FOR REMAND Entitlement to a rating in excess of 20 percent from December 1, 2014, to October 1, 2020, and in excess of 10 percent from October 1, 2020, for a lumbar spine condition is remanded. In November 2019, the AOJ procured a VA examination to assess the severity of the Veteran's lumbar spine condition. Significantly, however, the VA examiner failed to specifically address non-weight bearing, active, and passive ranges of motion. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The Board emphasizes that the final sentence of 38 C.F.R.§ 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing ranges. Accordingly, the Board finds that remand is warranted to assess the current severity of the Veteran's lumbar spine condition. The matter is REMANDED for the following action: Obtain a VA examination to evaluate the current severity of the Veteran's lumbar spine condition. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of this examination. All indicated tests should be accomplished and all clinical findings reported in detail. The examiner is asked to fully describe the current severity of the disability, including all objective manifestations. a) To be compliant with Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the examiner must address range of motion loss specifically due to pain and any functional loss during flare-ups. The examiner is to express an opinion on whether pain could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time. These determinations should, if feasible, be portrayed in terms of degrees of additional range of motion loss due to pain on use or during flare-ups. b) To comply with Correia v. McDonald, 28 Vet. App. 158, 170 (2016), testing of the range of motion must include testing in active motion and passive motion. The examiner should also discuss weight-bearing and nonweight-bearing ranges. If such are not applicable, the examiner should state such along with an explanation. c) If it is not feasible to provide the degrees in which there is an additional loss in range of motion during flare-ups or repeated use over time or any range of motion testing, then the clinician must provide an adequate explanation as to why. d) The examiner should also comment on the functional impairment caused by the Veteran's lumbar spine condition. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Talton, John H. 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.