Citation Nr: 21027002 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-31 027 DATE: May 4, 2021 ORDER Prior to November 15, 2019, entitlement to a rating in excess of 10 percent for lumbar spine disorder is denied. From November 15, 2019, entitlement to a rating in excess of 40 percent for lumbar spine disorder is denied. FINDINGS OF FACT 1. Prior to November 15, 2019, the Veteran's service-connected lumbar spine disorder did not manifest as 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. 2. From November 15, 2019, the Veteran's service-connected lumbar spine disorder did not manifest as unfavorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. Prior to November 15, 2019, the criteria for a rating in excess of 10 percent for the Veteran's service-connected lumbar spine disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.40, 4.45, 4.71a, Diagnostic 5237. 2. From November 15, 2019, the criteria for a rating in excess of 40 percent for the Veteran's service-connected lumbar spine disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.40, 4.45, 4.71a, Diagnostic 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1987 to June 1990. In a July 2020 rating decision, the VA Regional Office (RO) increased the rating for the Veteran's service-connected lumbar spine disorder from 10 percent to 40 percent, effective from November 15, 2019. As this does not constitute a full grant of the benefit sought, this issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 39 (1993). Increased Disability Ratings of the Musculoskeletal System The Veteran asserts that the ratings assigned to his service-connected lumbar spine disorder do not reflect the severity of his symptoms Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. Deluca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202, 206-8 (1995). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable Diagnostic Code. Where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. However, subjective pain and numbness in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. See Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018). Musculoskeletal VA examinations, to be adequate, must address particular issues when are where that are practicable and medically possible to include active and passive motion; weight bearing and non-weight bearing; range of motion of an opposing joint; and findings as to loss of motion during flare-ups. See Correia v. McDonald, 28 Vet. App. (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). The RO has rated this disability under 38 C.F.R. § 4.71a, Diagnostic Code 5237, which compensates for lumbosacral strain, and applies the General Rating Formula for Diseases and Injuries of the Spine. Under that rating criteria, a 10 percent rating is assigned 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. 38 C.F.R. § 4.71a, Diagnostic Code 5237. A 20 percent 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. Id. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Finally, a 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Id. An alternative method of evaluating spine disabilities is pursuant to Diagnostic Code 5243, which compensates based on incapacitating episodes due to intervertebral disc syndrome (IVDS). These ratings are not to be combined, and only the rating which results in a higher evaluation is to be granted. 38 C.F.R. § 4.71a, Diagnostic Code 5243. When considering disability of the musculoskeletal system, arthritis is considered. An evaluation of traumatic arthritis, Diagnostic Code 5010, is rated under the criteria for Diagnostic Code 5003, which in turn evaluates disabilities based on the degree of limitation of motion under the appropriate Diagnostic Codes. 38 C.F.R. § 4.71a. If the disability is noncompensable under the appropriate Diagnostic Code for the joint involved, a 10 percent rating will be for application for such major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71a. The rating criteria pertaining to Diagnostic Code 5010 was revised effective February 7, 2021. Posttraumatic arthritis is rated as limitation of motion, dislocation, or other specified instability under an affected joint. If there are two or more joints affected, each rating shall be combined in accordance with 38 C.F.R. § 4.25. Evidence and Analysis Prior to November 15, 2019 In September 2011, the Veteran underwent a VA thoracolumbar spine conditions examination. A clinician reviewed the claims file; considered the Veteran's lay accounts and conducted an appropriate evaluation (hereinafter "VA exam protocols"). The Veteran endorsed flare-ups, specifically advancing that overactivity caused flares to his chronic back pain. The Veteran commanded forward flexion to 90 degrees, with pain at 70 degrees; extension to 30 degrees, with pain; right lateral flexion to 30 degrees, with pain ; left lateral flexion to 30 degrees, with pain; right lateral rotation to 30 degrees, with pain; and left lateral rotation to 30 degrees, with pain. The Veteran was capable of repetitive use (of at least three repetitions) without additional loss in ranges of motion. The clinician indicated that functional impairment upon repetitive use included pain on movement and interference with sitting, standing, and/or weight-bearing. The Veteran did not have guarding; however, there was localized tenderness, or pain on palpation of the soft tissue/joints of the thoracolumbar spine that did not result in abnormal gait. The Veteran commanded normal muscle strength. There was no evidence of muscle atrophy; however, the Veteran had hypoactive deep tendon reflexes (DTRs) at the bilateral ankle (otherwise DTRs were normal) and muscle spasm. Straight leg testing was positive for the right and negative for the left. There was no evidence of radiculopathy or other neurological abnormalities. The clinician indicated that the Veteran did not have IVDS. The Veteran reported that he used a brace on a regular basis. X-ray imaging revealed the presence of degenerative disc disease (DDD) and facet disease, without acute fracture or subluxation. The clinician reported functional impact on the Veteran's ability to work, namely an avoidance of work tasks that require heavy or frequent lifting. The Veteran's Social Security Administrative (SSA) records disclose that Veteran's lumbar spine disorder (as DDD) was included in the fully favorable notice of decision. These records reveal that the Veteran reported an onset date (for VA disability purposes) of October 17, 2012. Upon July 2014 magnetic resonance imaging (MRI), a clinician found diffuse congenital narrowing of lumbar spine; degenerative changes of posterior elements throughout lumbar spine of variable degree; L3-L4 disc bulge effacing foraminal fat bilaterally along with mild lateral recess narrowing in conjunction with posterior element degenerative changes and congenital narrowing; and L4-L5 with mild lateral recess stenosis. In a June 2013 VA treatment record, a clinician indicated that the Veteran endorsed chronic low back pain which radiated down both legs. In an October 2013 VA pain consultation, the Veteran reported lower back pain of 6/10 with bilateral radiation into his buttocks. In a February 2015 VA treatment record, a clinician noted that the Veteran asserted that his lower back pain had worsened. The Veteran also endorsed left-side muscle spasms and lower extremity radiating pain. The Veteran reported that his pain worsened with walking or standing for 10-15 minutes. Upon interpretation of a February 2015 MRI, a physician found diffuse congenital narrowing of the lumbar spinal canal; degenerative facet changes throughout the lumbar spine to a variable degree; and spondylosis. In June 2015, the Veteran sought VA pain consultations. The Veteran reported that his lower back pain had sharpened. In his June 2016 notice of disagreement (NOD), the Veteran wrote that he was receiving injections to assuage his lower back pain. In his June 2016 substantive appeal (VA Form 9), the Veteran reported that he sought emergency room (ER) service twice in 2016. The Veteran also re-conveyed that his lower back pain has worsened. Prior to November 15, 2019, the Veteran believes that his lumbar spine disorder warranted a rating in excess of 10 percent. The Veteran is certainly competent to report discernable symptoms of sharpened pain and radiating pain. The Board has considered the Veteran lay statements carefully. 38 C.F.R. § 3.159(a)(2). Prior to November 10, 2019, the RO assigned a 10 percent rating under Diagnostic Code 5237. A 10 percent rating is the maximum rating available for pain without a showing of functional limitations. The Board has discussed the pertinent evidence above. No examination during the time frame under consideration found limitations of motion that would be compensable under the Diagnostic Code 5237. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45; see also DeLuca 8 Vet. App. 202. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance, and must manifest by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Here, more than the minimal compensable rating for the thoracolumbar spine is already assigned, and analysis must turn to whether functional loss warranting a higher than 10 percent rating is reasonably shown. The September 2011 clinician indicated that pain on movement and interference with sitting, standing, and/or weight-bearing limited functional ability with repeated use over time and pain. And, the Veteran endorsed that overactivity caused flares to his chronic back pain. However, no clinician could ascertain with any certainty what such additional limitation constituted in terms of degrees. Consequently, an increased rating based on functional limitations due to these factors is not warranted. While the Veteran experienced thoracolumbar spine pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but of itself does not constitute functional loss. See Saunders, 886 F. 3d 1356. Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," to constitute functional loss warranting an increased rating. Id.; see 38 C.F.R. § 4.40. The Board has no reason to question that the Veteran's lumbar spine disorder results in the functional limitations that he has endorsed. Such limitations are contemplated by the criteria for the assigned 10 percent rating. The Board has thoroughly considered the updated Diagnostic Codes that went into effect on February 7, 2021, and whether an increased rating for the Veteran's lumbar spine disorder was warranted however the Board finds that such is not applicable. Finally, the Board finds that a separate rating for a neurological impairment of the lower extremities is not warranted, as although the Veteran reported radiating pain, an actual impairment to the sciatic nerve was not demonstrated on clinical examination. The Veteran reported quivering pain in lower extremities, more so on the left side, in 2013, however, subsequent VA examination did not show evidence of impairment to the sciatic nerve on the left side. In sum, the Board finds that the preponderance of the evidence is against the claim for a rating in excess of 10 percent for lumbar spine disorder prior to November 15, 2019. From November 15, 2019 On November 15, 2019, the Veteran underwent a VA thoracolumbar spine conditions examination. The clinician followed VA exam protocols. The Veteran endorsed flare-ups, precipitated by prolonged sitting, standing, walking, bending, lifting, carrying, pushing, and/or pulling. The Veteran commanded forward flexion to 17 degrees, with pain; extension to 10 degrees, with pain; right lateral flexion to 6 degrees, with pain; left lateral flexion to 15 degrees, with pain; right lateral rotation to 6 degrees, with pain; and left lateral rotation to 8 degrees, with pain. The clinician indicated that limited range of motion and pain contributed to functional loss. There was no pain on weight bearing. The Veteran did have guarding, localized tenderness, or pain on palpation of the soft tissue/joints of the thoracolumbar spine. Specifically, the clinician indicated that this tenderness/pain evinced at the bilateral paravertebral lumbar muscles. The Veteran was capable of repetitive use (of at least three repetitions) without additional loss in ranges of motion. The clinician indicated that examination took place immediately after repeated use in time. The clinician reported that pain significantly limited functional ability with repeated use over a period of time (as such the ranges of motion reported above reflect this loss of functionality). As to flare-ups, the clinician indicated that this could not be characterized in ranges of motion. As a rationale, the clinician opined that range of motion and functional limitations depend on type, intensity, and duration of a specific activity. As the Veteran is being examined after repetitive use over time and not during a flare-up, the clinician reported that an objective, accurate, measurable estimate of the additional loss of range of motion during a flare-up cannot be derived; moreover, a review of treatment records fails to disclose any annotations that would support a significant loss of functionality during a flare-up. Muscle spasm and guarding resulted in abnormal gait or abnormal spinal contour. Muscle strength registered as active movement against some resistance at every index except left ankle dorsiflexion and left great toe extension which were normal. There was no evidence of muscle atrophy and sensory testing was normal. Reflex testing was normal at every index but the right lower leg/ankle and the right foot/toes which were decreased. Straight leg testing was positive at the right and negative at the left. (Radiculopathy of the right lower extremity was present. Here, the Board observes that the RO rated right lower extremity radiculopathy as a separate disability under Diagnostic Code 8520, at 20 percent effective from the date of this examinationNovember 15, 2019). The clinician indicated that there was no objective evidence of ankylosis or other neurological abnormalities. While the Veteran has IVDS. IVDS has not required any periods of bedrest prescribed by a physician over the past 12 months. The Veteran reported that he occasionally used a brace but constantly uses a cane. MRI documented arthritis (as noted above); however, there was no finding of a thoracic fracture with loss of 50 percent or more of height. The functional impact on the Veteran's ability to work consisted of limited sitting, standing, walking, bending, lifting, carrying, pushing, and/or pulling. The clinician indicated that passive range of motion testing could not be performed and is not medically appropriate for the thoracolumbar spine. Likewise, contralateral joint testing could not be performed. From November 15, 2019, the Veteran believes that his lumbar spine disorder warrants a rating in excess of 40 percent. The Veteran is certainly competent to report discernable symptoms of pain. The Board has considered the Veteran lay statements carefully. 38 C.F.R. § 3.159(a)(2). From November 10, 2019, the RO assigned a 40 percent rating under Diagnostic Code 5237. To receive a higher disability rating, there would need to be a showing of unfavorable ankylosis of the entire thoracolumbar spine. The November 15, 2019 clinician indicated that there was no objective evidence of ankylosis or other neurological abnormalities. The Board has considered whether a higher rating is warranted for the Veteran's IVDS; however, this is not possible as the Veteran's IVDS has not required any periods of bedrest prescribed by a physician over the past 12 months. The Board does not question that the Veteran's lumbar spine disorder results in the functional limitations that the Veteran endorsed (problems with prolonged sitting, standing, walking, bending, lifting, carrying, pushing, and/or pulling). These limitations are contemplated by the criteria for the 40 percent rating assigned. The Board also finds that the Veteran's lumbar spine disorder and impairment shown do not include any that are outside of the schedular rating criteria. The Board has thoroughly considered the updated Diagnostic Codes that went into effect on February 7, 2021, and whether an increased rating for the Veteran's lumbar spine disorder is warranted however the Board finds that such is not applicable. Finally, the Board finds that a higher rating for right lower extremity radiculopathy is not warranted, as more than moderate symptoms were not demonstrated on examination at any time during the appeal period. In sum, the Board finds that the preponderance of the evidence is against the claim for a rating in excess of 40 percent for lumbar spine disorder from November 15, 2019. R. Erdheim Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, 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.