Citation Nr: 21028367 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-33 962 DATE: May 11, 2021 ORDER Entitlement to a rating in excess of 40 percent for lumbosacral strain, status post arthrodesis transforaminal approach fusion (TLIF) L4-S1 and L3-L4 is denied. FINDING OF FACT During the appellate period, the Veteran's lumbosacral strain has manifested as forward flexion being limited to 5 degrees; however, the Veteran has no ankylosis and the evidence does not support a finding of incapacitating episodes of six weeks or more in the past twelve months due to his intervertebral disc syndrome (IVDS). CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for lumbosacral strain, status post arthrodesis transforaminal approach fusion (TLIF) L4-S1 and L3-L4 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code (DC) 5237 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1978 to February 1998. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board has issued two prior remands on this claim in February 2019 and July 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 strain 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 40 percent for lumbosacral strain, status post arthrodesis transforaminal approach fusion (TLIF) L4-S1 and L3-L4. The Veteran was originally granted service connection for his lumbosacral strain in an October 1998 rating decision, evaluated at 10 percent, effective March 1, 1998. Most recently, in November 2015, the Veteran requested an increased rating for his lumbosacral strain. In support of his request, the Veteran provided several private treatment records. He was also given a VA examination for his back in January 2016. Here, the examiner diagnosed lumbar strain, status post arthrodesis transforaminal approach fusion L4-S1. The examiner noted no flareups, but with regard to functional loss quoted the Veteran was stating "I don't do anything now. My wife has to tie my shoes because it hurts too much to bend over." Under the Veteran's medical history, the examiner noted that the Veteran was status post fusion of L4-S1 in October 2013 but required a second fusion in October 2015 of the L3-L4 due to numbness involving the anterior thigh. The Veteran's forward flexion was found to be limited to 5 degrees, with pain noted on exam. No additional range of motion loss was noted, nor was ankylosis noted. The examiner did however find signs of symptoms of radiculopathy in the left lower extremity, and diagnosed IVDS with no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. Finally, the examiner found that the Veteran's lumbosacral strain impacted his ability to work noting "The Veteran will not tolerate back bending or twisting." Based on this examination, the RO issued a February 2016 rating decision granting a temporary evaluation of 100 percent effective October 14, 2015 based on surgical or other treatment necessitating convalescence, and a 40 percent evaluation assigned from December 1, 2015 for the Veteran's lumbosacral strain. The Board notes that the Veteran was also granted special monthly compensation based on housebound criteria and an increased evaluation for his radiculopathy of the left lower extremity. Service connection was also in effect for radiculopathy of the right lower extremity. The Veteran appealed the evaluation of his lumbosacral strain up to the Board. In the meantime, the RO issued an April 2016 rating decision continuing to rate the Veteran's lumbosacral strain at 40 percent. Then, in February 2019, the Board remanded the claim to afford the Veteran a new VA examination to determine the current severity of his condition. The Veteran was given another VA examination for his back in October 2019. Here, the examiner diagnosed lumbosacral strain, IVDS, and spinal stenosis. The examiner noted that the Veteran did not suffer from any flareups but reported functional loss as "I can't bend to pick anything up, it hurts if I sit too long and I can't stand. This affects my driving also." The examiner found the Veteran's forward flexion to be limited to 10 degrees with pain noted on exam. No additional loss of limitation of motion was found following repetitive use or repeated use over time. The examiner noted radiculopathy of the bilateral lower extremities but found no ankylosis. With regard to IVDS the examiner opined that the Veteran had no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. However, the Veteran reported 6-8 weeks of incapacitating episodes in the last 12 months. The examiner opined that the Veteran's back impacted his ability to work by requiring "No heavy lifting, prolonged standing, sitting, or walking. Limit stairs." No objective evidence of pain on weight-bearing was noted. The Board finds this opinion to be consistent with the record, entitling it to significant probative weight. Based on this examination, the RO issued a May 2020 rating decision increasing the assigned evaluations for the Veteran's radiculopathy of the bilateral lower extremities, granting service connection for additional radiculopathy of the bilateral femoral nerves, and granting basic eligibility for Dependents' Educational Assistance, all effective October 6, 2019. The Board notes that beginning October 6, 2019, the Veteran was in receipt of a 100 percent combined evaluation for disability compensation. In July 2020, the Board remanded the claim again, noting the discrepancy in the October 2019 examiner's findings that the Veteran had not suffered from any incapacitating episodes due to his IVDS and the Veteran's statements that he has suffered from 6-8 weeks of such episodes. An addendum opinion for clarification was requested. In September 2020 an addendum opinion was uploaded into the Veteran's electronic claims file. Here, the examiner wrote that she was not privileged to the Veteran's work records to know the amount of time he missed work, but that his response of 6-8 weeks off was not corroborated by any records. Instead, limitations related to work were no heavy lifting, prolonged standing, sitting, or walking, and to limited stairs. The examiner further opined that the Veteran's range of motion on exam was suspected to be exaggerated as he was able to sit upright with his legs at 90 degrees but could not bend when asked to more than 10 degrees. Finally, the examiner opined that other than the work limitations already noted that the Veteran would be "able to function in an occupational environment given freedom to change positions from sitting to standing as needed." The Board finds this opinion to be consistent with the record, entitling it to significant probative weight. The Veteran is in receipt of the maximum evaluation available for limitation of motion of the spine under the rating schedule. Also, a 40 percent rating is assigned for favorable ankylosis. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Thus, the 40 percent rating contemplates episodes in which the Veteran believes his disability is so severe that he cannot move his back. Unfavorable ankylosis is a condition in which the entire thoracolumbar spine or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). The Board does not find that the medical evidence and the Veteran's description of the functional impairment he experiences as a result of his low back disability demonstrates the level of disability associated with unfavorable ankylosis of the thoracolumbar spine, which is the criteria associated with the next higher rating of 50 percent. While the Board notes that the Veteran's IVDS was found to be a progression of his lumbosacral strain, IVDS (DC 5243) is also rated under the General Rating Formula for Diseases and Injuries of the Spine or Based on Incapacitating Episodes, whichever method results in a higher evaluation. With regard to incapacitating episodes, a 60 percent rating is warranted if the Veteran's episodes have a total duration of at least 6 weeks during the past 12 months. Note (1) provides "For purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to invertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." The Board notes, however, that effective February 7, 2021 DC 5243 was revised to read "Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses." The record does not support a finding that the Veteran was prescribed 6-8 weeks of bed rest by a physician due to his IVDS symptoms. Moreover, in her September 2020 addendum opinion the examiner opined that the Veteran's reports of incapacitating episodes are not corroborated by any records. Neither the Veteran nor his representative has provided any additional evidence in support of this claim. As the preponderance of the evidence is against the claim, entitlement to a rating in excess of 40 percent for lumbosacral strain, status post arthrodesis transforaminal approach fusion (TLIF) L4-S1 and L3-L4 is denied. 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.