Citation Nr: 21027514 Decision Date: 05/06/21 Archive Date: 05/05/21 DOCKET NO. 16-34 042 DATE: May 6, 2021 ORDER An increased rating for thoracolumbar strain (low back disability) in excess of 20 percent is denied. FINDING OF FACT Throughout the appeal period, the Veteran's low back disability manifested by pain and painful motion, with forward flexion limited to greater than 30 degrees even during flare-ups or after repeated use; with no ankylosis; no associated neurologic abnormality; and no intervertebral disc syndrome or incapacitating episodes. CONCLUSION OF LAW The criteria for an increased rating for thoracolumbar strain (low back disability) in excess of 20 percent are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 2006 to December 2006 and from May 2009 to June 2010, with additional service in the U.S. Marine Corps Reserve. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision that granted an increase to 20 percent for the low back disability. The Veteran seeks a higher rating. In October 2018, the Board remanded this matter for additional development. It now returns to the Board. The Board also remanded service connection for a psychiatric disability. This issue was granted in an April 2020 rating decision as a full grant of the appeal. 1. Increased rating for thoracolumbar strain in excess of 20 percent The Veteran seeks a rating higher than 20 percent for his low back throughout the appeal period based on his pain and resulting limitations. See, e.g., August 2015 notice of disagreement (asserting that there is back sprain plus bone spurs and spinal compressions that warrant a higher rating); August 2016 informal conference report; July 2018 and August 2020 appellate briefs from representative. More specifically, VA's percentage ratings are based on the average impairment of earning capacity as a result of service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. A separate or higher rating may be assigned based on non-overlapping conditions and symptoms, if the compensable criteria under applicable diagnostic codes are met, including with consideration of additional functional loss after repetitive use or flare-ups for musculoskeletal conditions based on range of motion. See 38 C.F.R. §§ 4.14, 4.40, 4.45, 4.59, 4.71a; Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009); Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016). Pain itself does not constitute functional loss, and painful motion must result in functional loss to constitute limited motion for a rating under diagnostic codes based on limitation of motion. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). VA recently amended the regulations for rating spinal disabilities, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243, & 5244). As relevant to this case, these changes result in distinctions between IVDS (still rated under DC 5243 as an alternative to the General Rating Formula as summarized above) and degenerative disc disease other than IVDS (now rated under DC 5242 but not DC 5243). In this case, there is no medical notation of degenerative disc disease or IVDS. Therefore, the applicable analysis remains the same under both sets of criteria, and neither set is more favorable to the Veteran. The addition of DC 5244 is for traumatic paralysis, to include paraplegia or quadriplegia, which is not applicable here. Spinal disabilities are rated under the General Rating Formula for Diseases and Injuries of the Spine, which provides for assignment of a separate rating for any associated objective neurological abnormalities. The identified ratings are to be assigned with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of injury or disease. If there is intervertebral disc syndrome (IVDS), which is not shown in this case, the disability will be rated under either the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. See 38 C.F.R. § 4.71a, DCs 5237, General Rating Formula & Note (1). 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 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, DC 5237. As directed in the prior remand, updated VA treatment records were obtained for the Veteran. He has not identified any outstanding private records for his back. Throughout the appeal period, there has been no ankylosis, as the Veteran retained significant range of motion despite pain. There was also no objective associated neurologic impairment, to include in the lower extremities, bowel, or bladder. The Veteran denied symptoms in these areas and has not argued for a separate rating. As noted above, there is also no IVDS or indication of incapacitating episodes. The evidence reflects that the Veteran's low back disability has manifested by varying degrees of pain or tenderness, described as a dull ache with sharp pain at times, stiffness, and painful or limited motion at times. He has used physical therapy, chiropractic care, stretching, rest, and Tylenol as needed to relieve pain. The Veteran described increased pain from wearing a vest as a police officer with prolonged standing, prolonged sitting, lifting, bending, strenuous exertion, and turning or moving the wrong way suddenly. In 2019, he stated that these flareups occur on average once a month, which are severe and last for a week. The Veteran reported difficulties being involved in his family life and sleeping due to pain, and functional loss as unspecified limited motion and lifting more than 50 pounds. Impacts on work were that wearing a heavy vest and gun belt caused increased pain with prolonged standing, and he had lost some days from work because of pain. Other impacts were limitations of prolonged sitting, standing, bending, and lifting due to increased pain. See, e.g., VA treatment records in February 2016 and March 2020; VA examinations in July 2015 and November 2019. The July 2015 VA examination measured range of motion with limited forward flexion to 60 degrees, with pain at 50 degrees, limited extension to 20 degrees with pain at 15 degrees; and full right and left lateral flexion and right and left lateral rotation to 30 degrees or greater each, with pain at 25 degrees. There was no change after repetitive testing. The Veteran's functional loss was noted as less movement than normal, excess fatigability, pain on movement, and interference with sitting, standing, and weightbearing. The Veteran was tender to palpation at the mid-back to low back, with no guarding or muscle spasm, and he did not use an assistive device. Muscle strength, reflexes, and sensory testing were normal; there was no radiculopathy or IVDS; and no arthritis was shown on x-rays. A February 2016 VA treatment record noted chronic midline low back pain, with no radiation or treatment. Testing showed full range of motion with pain at the end ranges of flexion and extension. The Veteran was referred for physical therapy. The November 2019 VA examination measured limited forward flexion to 45 degrees, as well as limited extension to 5 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 15 degrees. Abnormal range of motion itself did not contribute to functional loss. The Veteran had pain on examination with all movements, but the pain did not result in additional functional loss. He was tender to palpation at the low back, which was moderate to severe in degree. Repetitive use testing showed additional loss for extension from 5 to 0 degrees, and his left lateral rotation increased from 15 to 20 degrees. However, forward flexion remained at 45 degrees, and the other ranges of lateral flexion and lateral rotation remained at 10 or 15 degrees, respectively. This additional loss was due to pain and weakness. The examiner stated that the Veteran would likely have significant limitation with repeated use over time and flareups due to pain and weakness, but he did not give an estimate of additional loss in degrees because the range of motion was not contributing to his functional loss. The Veteran did not use an assistive device, and lower extremity testing was normal, with no radiculopathy. A March 2020 VA treatment record noted chronic low back pain for which the Veteran did stretching exercises. The updated VA examination in November 2019 and the other available information is sufficient to substantially comply with the prior remand. Although the August 2020 appellate brief requested a new examination, no inadequacy or other reason for a new examination was provided. The VA examination contained adequate information as to the nature and severity of the Veteran's disability. The guidance on how to evaluate flareups has not been particularly clear. As a consequence, the holding in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), will be expanded, and flareups must be quantifiable and must result in limitation of motion of function beyond that contemplated by the already provided evaluation. Additionally, because there is a regulation addressing the stabilization of ratings, flareups must be of such length as to establish that the overall impairment is more severe than currently evaluated. Under 38 C.F.R. § 4.1, the degrees of disability specified by the ratings in diagnostic codes are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. In this case, the Veteran's statements do not show that flareups or repeated use over time additionally limited his function particularly for forward flexion of the thoracolumbar in a quantifiable way, or that they are of such length or duration that a higher or staged rating would not violate the spirit of Mitchell, 38 C.F.R. § 4.1, and the rule regarding stabilization of ratings. As noted above, pain alone is not sufficient to constitute limitation of motion without resulting in additional functional loss, and painful motion alone does not constitute limited motion for the purposes of rating under the specific codes for limitation of motion, as opposed to assigning a minimum rating under DC 5003 or section 4.59. The VA examiners attempted to elicit this information, and the Veteran primarily reported increased pain or soreness with certain motions. Furthermore, he complained of additional pain with extension, which is consistent with the measurement of decreased extension (but not other motions, to include forward flexion) after repetitive testing. These descriptions do not suggest a quantifiable additional loss of forward flexion or any limitation of motion approaching ankylosis, and an opinion to estimate any additional degree of limitation during flareups or after repeated use would have no reasonable possibility of assisting in substantiating the claim. Therefore, the lack of any such opinion is not prejudicial to the claim, and no further opinion is necessary. As the evidence reflects significant forward flexion and other ranges of motion despite increased pain or other contributing factors, these factors did not result in a greater degree of functional loss or limitation for the Veteran than summarized above. Although the Veteran used Tylenol at times, he continued to have pain or limitations despite such medication, such that discounting any ameliorative effects would not result in a higher limitation to support a higher rating. Additionally, the Veteran had significant tenderness or pain during the 2019 examination. This is consistent with the more limited measurements to 45 degrees of flexion, and particularly more limitation with extension (including additional loss of extension after repetitive testing), than during prior examination or treatment during pain. Although the Veteran believes he has a bone spurs and spinal compressions in addition to strain, he is not competent to diagnose his underlying spinal condition. This question requires medical training or expertise due to the complex nature of the spine to interpret the Veteran's history and tests. As noted below, x-rays show no arthritis or spinal abnormality. Moreover, even if there were additional x-ray findings, the Veteran's manifestations and functional loss due to pain or otherwise are what determine the proper rating. He has already been assigned higher than the minimum 10 percent that would be available for arthritis or a vertebral fracture. There is no suggestion that the Veteran's limitations reached 30 degrees of forward flexion at any point, including due to increased pain or other factors at times. Accordingly, a rating in excess of 20 percent is not warranted under DC 5237. In summary, the Veteran's low back disability has been relatively stable throughout the appeal period. Any other increases in severity were not sufficient to more nearly approximate the criteria for the next higher rating or a separate rating at any point. Thus, the preponderance of the evidence is against an increased rating, there is no reasonable doubt to resolve in the Veteran's favor, and the appeal is denied. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Wheatley 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.