Citation Nr: 21031206
Decision Date: 05/20/21	Archive Date: 05/20/21

DOCKET NO. 15-12 083A
DATE: May 20, 2021

ORDER

An evaluation in excess of 10 percent for IVDS with lumbosacral strain, prior to November 10, 2020 and in excess of 20 percent, thereafter, is denied.

An evaluation in excess of 10 percent prior to November 10, 2020 and in excess of 20 percent, thereafter for IVDS with lumbosacral strain on an extra-schedular basis under 38 C.F.R. § 3.321 is denied.

FINDINGS OF FACT

1. For the period prior to November 10, 2020, the Veteran's service-connected IVDS with lumbosacral strain has not been manifested by forward flexion of the thoracolumbar spine to 60 degrees or less, by a combined range of motion of 120 degrees or less, or by muscle spasm or guarding severe enough to result in an abnormal gait or in an abnormal spinal contour during the appellate period.

2. For the period beginning November 10, 2020, the Veteran's service-connected IVDS with lumbosacral strain has not been manifested by forward flexion of the thoracolumbar spine to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or intervertebral disc syndrome with incapacitating episodes.

3. The Veteran's service connected IVDS with lumbosacral strain is not so exceptional or unusual, due to such related factors as marked interference with employment or frequent periods of hospitalization, that application of the regular rating criteria is impractical.

CONCLUSIONS OF LAW

1. The criteria for an evaluation in excess of 10 percent, for the period prior to November 10, 2020, and in excess of 20 percent thereafter, for lumbosacral strain and intervertebral disc syndrome, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5243.

2. The criteria for entitlement to an extra-schedular rating under 38 C.F.R. § 3.321 for IVDS with lumbosacral strain have not been met.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from May 1988 to November 1995.

This matter originally came to the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).

The Board previously considered this appeal in July 2018 and remanded this issue for further development including scheduling a VA examination. The case returned to the Board for further appellate review.

In a December 2020 rating decision, during the present appeal, the RO increased the evaluation for IVDS with lumbosacral strain to 20 percent disabling, effective November 10, 2020. However, because less than the maximum available benefit for a schedular rating was awarded and because the higher rating was not awarded for the entirety of the claims period, the claim remains before the Board. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35 (1993). Additionally, the Agency of Original Jurisdiction (AOJ) granted service connection for right lower extremity radiculopathy and left lower extremity radiculopathy and assigned each disability a 20 percent rating, effective March 13, 2014.

Increased Rating

Disability ratings are determined by applying the criteria set forth in the 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).

If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21.

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 (1999).

In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy.

Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016).

Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011).

1. Entitlement to an evaluation in excess of 10 percent for IVDS (previously considered as lumbosacral strain), prior to November 10, 2020 and in excess of 20 percent, thereafter

The Veteran seeks a higher evaluation for his IVDS with lumbosacral strain. He also asserts that his present symptoms are not contemplated by the schedular ratings and therefore warrant extraschedular consideration.

By way of history, the Veteran was service connected for chronic lumbosacral strain in a February 1996 rating decision at noncompensable rating, effective November 21, 1995. In August 2009, the RO increased the rating to 10 percent rating, effective July 25, 2008. In December 2020, The RO increased the rating to 20 percent, effective November 10, 2020.  The Veteran's IVDS with lumbosacral strain is currently rated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5242-5243. Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25.

Under the General Rating Formula for Diseases and Injuries of the 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 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, General Rating Formula for Diseases and Injuries of the Spine.

The criteria also include the following provisions: 

Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 

Note (2): For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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 cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 

Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. 

Note (4): Round each range of motion measurement to the nearest five degrees. 

Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 

Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.

The IVDS Formula provides a 20 percent rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) to DC 5243 provides that, for purposes of ratings under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2) provides that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a.

However, the Board must consider 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 when deciding whether a higher disability evaluation is warranted. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). 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 be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. A part that becomes painful on use must be regarded as seriously disabled. Id. The Court explained in Mitchell that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40 ), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45 ). 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. Consequently, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 

The Board notes, however, that the Court has held that 38 C.F.R. § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997).

VA recently amended the criteria for some musculoskeletal disabilities effective from February 7, 2021. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal.

In pertinent part, 38 C.F.R. § 4.71a , Diagnostic Code 5242 for degenerative arthritis of the spine was revised to apply to degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (IVDS). In addition, 38 C.F.R. § 4.71a , Diagnostic Code 5243 for IVDS was revised to include an instruction to assign this Diagnostic Code only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Diagnostic Code 5242 should be assigned for all other disc diagnoses. Significantly, the actual rating criteria (the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) and the Formula for Rating IVDS Based on Incapacitating Episodes) were not changed.

The Board notes the Veteran's intervertebral disc syndrome with lumbosacral strain is currently rated using range of motion rather than IVDS because the former results in a higher rating. During the appeal period, the Veteran has been afforded two VA thoracolumbar spine examinations in October 2012 and November 2020.

At the October 2012 VA examination, the Veteran reported a dull, throbbing, low back pain which became sharper with activity. He did not report flare-ups. On examination, the Veteran's range of motion reflected flexion to 70 degrees with pain, extension to 5 degrees with pain, right lateral flexion to 10 degrees with pain, left lateral flexion to 15 degrees with no pain, right lateral rotation to 10 degrees  with pain, and left lateral rotation to 15 degrees with no pain. There was no additional loss of motion on repetition. The examiner noted tenderness in the lumbar paraspinous musculature on the right side without any palpable spasms.  There was no guarding or muscle spasms of the back noted. Reflex examination was hypoactive. Sensory examination was normal. A diagnosis of radiculopathy was not found. In the July 2018 remand, the Board specifically noted that the October 2012 VA examination for the back was inadequate in terms of considering the effects of pain and additional functional loss during flare-ups of musculoskeletal disabilities and a new examination was needed. See Correia v. McDonald, 28 Vet. App. (2016), De Luca v. Brown, 8 Vet. App. 202 (1995) and Sharp v. Shulkin, 29 Vet. App. 26 (2017).

VA treatment records from March 2014 show the Veteran reported that the base of his back is always sore. Bending and stooping causes pain. Pain radiates to bilateral thighs. Has some "sharp pains to thighs". On physical examination trunk ROM was noted as "full all phases". Treatment notes from September 2014 show the Veteran complaint of low back pain with "pinch" radiating thru back side of leg to knee, 6/10, worse when bending, stooping, sitting, standing.

February 2014 x-rays show minimal degenerative changes of the lumbar spine.

Pursuant to the Board's July 2018 remand, the Veteran was examined again in November 2020. The examiner noted diagnoses of degenerative disc disease, degenerative arthritis of the spine and intervertebral disc syndrome (IVDS). The Veteran reported ongoing, progressive pain and stiffness of the low back with current symptoms of burning 6/10, pressure pain at waist area with flares to 7-8/10 that increases with stand or carry for 5 minutes, such as carrying his 4 year old son, washing dishes. More often than not, he experiences intermittent numbness and tingling in back of both thighs. He reported flare-ups as pain increases from 6-7/10 to 7-8/10, stiffness, unable to walk because muscles tighten up and has fallen because legs tightened up. The Veteran described functional loss as "can't carry son." Has to leave his desk at work after 30 minutes due to pain intensifies with prolonged sitting. He misses 5-6 days of work per month due to back pain. Range of motion testing revealed forward flexion to 85 degrees, extension to 12 degrees, right lateral flexion to 20 degrees, left lateral flexion to 24 degrees, right lateral rotation to 15 degrees and left lateral rotation to 31 degrees.  Repetitive use testing revealed additional loss of function or range of motion, as follows: forward flexion to 59 degrees, extension to 12 degrees, right lateral flexion to 19 degrees, left lateral flexion to 31 degrees, and right and left lateral rotation to 11 degrees, each.  The examiner indicated that pain would significantly limit functional ability with repeated use over a period of time or during a flare-up but indicated that range of motion would remain the same during those times.  The examiner noted that the examination was not conducted during a flare-ups; however, it is medically consistent with the Veteran's statement describing functional loss during flare-ups with pain significantly limiting his functional ability and range of motion, as follows: forward flexion to 44 degrees, extension to 9 degrees, right lateral flexion to 15 degrees, left lateral flexion to 25 degrees, and right lateral rotation to 9 degrees and left lateral rotation to 11 degrees.  The examiner indicated that the Veteran have muscle spasm of the thoracolumbar spine not resulting in abnormal gait or abnormal spinal contour. No guarding. No ankylosis of the spine. The Veteran was noted to have the following symptoms due to radiculopathy: mild paresthesias of the right and left lower extremity, mild numbness in the right lower extremity and moderate numbness in the left lower extremity and intermittent numbness and tingling in left lower extremity and to lesser degrees in the right lower extremity. No other neurologic abnormalities were noted. The examiner indicated that the Veteran have intervertebral disc syndrome with no incapacitating episodes.  The examiner described the Veteran's thoracolumbar spine condition functional impact as "has to leave his desk at work after 30 minutes due to pain intensifies with prolonged sitting. He misses 5-6 days of work per month due to back pain." No pain on non-weight bearing, passive ROM same as active ROM.

The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self- interest, malingering, desire for monetary gain, and witness demeanor. See Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996).

Here, for the period prior to November 10, 2020, an evaluation in excess of 10 percent is not warranted.  Specifically, there is no indication from the record that the Veteran had thoracolumbar spine flexion limited to 60 degrees or less, or thoracolumbar spine combined range of motion limited to 120 degrees or less.  Rather, his October 2012 VA examination, reflect flexion limited to 70 degrees at worst. Although the Board noted this did not fully contemplate pain and flare-ups it is also consistent with his treatment records which note the Veteran retained full range of motion in "all phases" in March 2014. There is no other evidence showing that he has more limitation of motion than that found at the VA examination. As such, the Board finds that a rating in excess of 10 percent prior to November 10, 2020, for the Veteran's back disability is not warranted. There is no basis for the assignment of additional disability due to pain, weakness, fatigability, weakness or incoordination for this period of the appeal. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 206-07.

For the period beginning November 10, 2020, the preponderance of the evidence is against a rating in excess of 20 percent from November 10, 2020 under the General Rating Criteria. The Board acknowledges the Veteran's lay reports of symptoms during the November 2020 examination that there was functional loss due to pain. In sum, even considering the effects of pain, the Veteran retained ranges of motion in the thoracolumbar spine. In other words, any additional limitation due to pain does not more nearly approximate a finding of forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Accordingly, the 20 percent rating contemplates the functional loss due to pain and less movement. There is no basis for the assignment of additional disability due to pain, weakness, fatigability, weakness or incoordination for this period of the appeal. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 206-07.

The Board also considered whether the Veteran is entitled to a rating in excess of 20 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5243, IVDS. At no time during the rating period was the Veteran entitled to a higher rating under Diagnostic Code 5243 because the evidence does not show that he has experienced any incapacitating episodes due to IVDS as defined in 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1.

Regarding neurological impairment, the Veteran has already been granted service connection for bilateral lower extremity radiculopathy associated with his lumbosacral strain disability. He did not appeal those initial ratings which were assigned. The lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his lumbosacral strain disability.

For the foregoing reasons, the preponderance of the evidence against the Veteran's claim for a rating in excess of 10 percent prior to November 10, 2020 and in excess of 20 percent thereafter. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

2. Entitlement to an evaluation in excess of 10 percent prior to November 10, 2020 and in excess of 20 percent, thereafter for IVDS with lumbosacral strain on an extra-schedular basis under 38 C.F.R. § 3.321 

The Veteran asserts that his present symptoms are not contemplated by the schedular ratings and therefore warrant extraschedular consideration; however, the Veteran has not made any specific arguments as to why his service-connected IVDS with lumbosacral strain presents an exceptional or unusual disability picture such that an extra-schedular rating is warranted.

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Separate diagnostic codes identify the various disabilities.

According to 38 C.F.R. § 3.321 (b)(1), ratings are to be based as far as practicable upon the average impairment of earning capacity. However, in those exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation can be provided commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. Initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for a given disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extraschedular consideration is required.

However, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or the Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as 'governing norms' (including marked interference with employment and frequent periods of hospitalization). If so, then the case must be referred to the Under Secretary for Benefits or the Director, Compensation Service, for a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. See Thun v. Peake, 22 Vet. App. 111 (2008).

Consideration of an extraschedular rating requires a three-step inquiry.  The first question is whether the schedular rating criteria adequately contemplate the veteran's disability picture.  If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization.  See Thun v. Peake, 22 Vet. App. 111 (2008).  The first Thun element compares a claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms.  Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses.  Yancy v. McDonald, 27 Vet. App. 484, 495 (2016).  If the veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted.  See Thun, 22 Vet. App. 111.

The Board cannot award an extraschedular rating in the first instance. Floyd v. Brown, 9 Vet. App. 88, 95 (1996). Here, however, the Veteran's claim was already referred for consideration of an extraschedular rating by the Director, Compensation Service (Director). In January 2021, the Director issued an advisory opinion finding that an extraschedular rating was not warranted. The Board is not bound by this decision and will conduct its own de novo analysis. Ray v. Wilkie, 31 Vet. App. 58, 63 (2019) (citing Wages v. McDonald, 27 Vet. App. 233, 238 (2015)). 

Based on consideration of all evidence of record, the Board finds that an extraschedular rating is not warranted.

The Veteran has consistently asserted that his lumbosacral strain disability causes him pain, and that it impacts his ability to sit, stand or bend. 

At his October 2012 VA examination, the Veteran reported a dull, throbbing, low back pain which became sharper with activity and that he has trouble sleeping due to his lower lumbar condition. He did not report flare-ups. The examiner noted less movement than normal, weakened movement, pain on movement and interference with sitting, standing and/or weight-bearing.

Private treatment records from urgent care did not show treatment specific for the lumbar spine. Other private treatment records show reports of low back pain since 1995. There was no radiation into the legs, no bowel or bladder changes and no leg weakness. MRI revealed minor disc bulges without disc herniation. On examination, the Veteran stood erect with shoulders level to the floor. There was some tenderness in the lumbar paraspinals. Straight leg raises were negative. Range of motion was noted as intact. Sensation was equal throughout. Lumbar range of motion was restricted and tight. However, specific range of motion findings were not provided.

VA treatment records show intermittent treatment for low back pain that included     physical therapy and acupuncture. There were no reports of hospitalization specific to the lumbar spine condition.

At his November 2020 VA examination, the Veteran reported pain and stiffness and being unable to walk because of the muscles tightening up. He indicated he missed work five or six days per month due to back pain and was unable to carry his five-year-old son. He reported leaving his desk at work after 30 minutes due to intense pain with prolonged sitting. There was evidence of muscle spasms on examination which did not result in abnormal gait or abnormal spinal contour. The examiner stated there were no acute signs or symptoms due to IVDS which required bedrest and treatment prescribed by a physician. 

In sum, the symptoms related to the Veteran's lumbosacral strain disability include pain, difficulty sitting for a length of time, weakness, stiffness, throbbing sensation, and pain that radiated into his leg. The General Rating Formula for Diseases and Injuries of the Spine assigns disability ratings based on limitation of range of motion. 38 C.F.R. § 4.71a, General Rating Formula for Spine Disabilities, Plate V. To that end, the schedular rating may be based on a range of forward flexion alone or based on combined range of motion that includes forward flexion, extension and lateral bending. Sitting, standing, stiffness, walking, bending and lifting all involve forward flexion, extension and/or stiffness in some capacity. As such, the symptoms the Veteran describes are contemplated by the rating schedule.

The general regulations that pertain to rating disabilities already contemplate pain, weakness, fatigability, difficulty moving, and interference with sitting and standing. Thus, these symptoms are also already contemplated by the schedular criteria. 38 C.F.R. § 4.40, 4.45; Thompson, 815 F.3d at 785. The Board notes that at the Veteran's recent VA examination, the examiner noted that pain, weakness, fatigability or incoordination significantly limit the Veteran's functional ability with repeated use over time and during flare-ups. However, as discussed above, the regulations that govern extraschedular ratings require "unusual or exceptional disability pictures" and, since the Veteran's symptoms are contemplated by these long-established regulations, they are necessarily not "unusual" or "exceptional."

To the extent to which the Veteran asserted his lumbosacral strain manifests directly in psychological symptomatology, the 2020 examiner agreed after review of clinical examination, review of the record and extant literature that there was support for such a contention and further noted that the lumbosacral strain and psychological symptomatology could be considered as one continuous disability. In this regard, however, the Veteran has been separately granted service connection for an acquired psychiatric disorder. Thus, rating any psychiatric manifestation under the rating for the lumbosacral strain would constitute pyramiding. 38 C.F.R. § 4.14.

The Board notes that the Veteran has asserted that his back pain has interfered with his work as he has missed work five or six days per month and has to leave his desk at work after 30 minutes of prolong sitting.

To the extent that the Veteran says his back pain interferes with his work, the General Rating Formula, described above, specifically contemplates occupational impairment, up to and including total impairment. Further, the rating schedule, as a whole, is based on how service-connected disabilities cause impairment, and it is designed to compensate based on the average impairment in earning capacity. 38 C.F.R. § 4.1. Although the Veteran has had to take some time off from work, the Veteran has not demonstrated marked interference with employment based upon the low back.

Based on the foregoing, the Board finds that the schedular criteria are adequate to rate the Veteran's IVDS with lumbosacral strain for the entire period on appeal. The preponderance of the evidence is against assigning a higher rating on an extraschedular basis. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

 

 

H. SEESEL

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	E. Romero-Sanchez, 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.