Citation Nr: 21031970 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 16-50 785 DATE: May 25, 2021 ORDER Entitlement to a rating greater than 20 percent for a lumbar spine disability is denied. FINDING OF FACT The Veteran's lumbar spine disability is manifest by forward flexion greater than 30 degrees, and ankylosis is not present. CONCLUSION OF LAW The criteria for a rating greater than 20 percent for lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.71a (Diagnostic Code 5242-5237). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from July 1984 to April 1997. This matter comes before the Board of Veterans' Appeals (Board) from the June 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in November 2018 and was remanded for further development. Specifically, the Board directed the Agency of Original Jurisdiction (AOJ) to ask the Veteran to complete an authorization form for all medical providers that treated his back disorder and to schedule the Veteran for a VA back examination. Subsequently, in September 2019, an authorization form was sent to the Veteran and he underwent a VA examination in November 2019. The Board therefore finds that there was substantial compliance with the prior remand order, as is discussed more fully below, and the Board may continue with its determination. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a rating greater than 20 percent for a lumbar spine disability The Veteran contends that he is entitled to a higher rating for his lumbar spine disability. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. As of February 7, 2021, the only amendment to diagnostic code 5242 is the notation that it should be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root. The Veteran's lumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. 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. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. In June 2014, the Veteran underwent a VA spine examination. The examiner stated that the Veteran is diagnosed with degenerative arthritis of the spine. The Veteran did not report flare ups. The Veteran's initial range of motion was as follows: forward flexion limited to 40 degrees; extension limited to 25 degrees; right and left lateral flexion limited to 25 degrees; and, right and left lateral rotation limited to 10 degrees. The Veteran was able to perform repetitive use testing with no additional limitation in range of motion. The examiner noted that the Veteran has tenderness to palpation of the lumbar spine and paraspinal muscles, however, no abnormal gait was noted. Additionally, no ankylosis or atrophy was reported. The examiner concluded that the Veteran's lumbar spine condition does not impact his ability to work. As noted above, this matter was previously before the Board in November 2018 and was remanded, in part, for the Veteran to undergo another VA examination. Thereby, in November 2019, the Veteran underwent a VA back examination. The examiner noted that the Veteran is diagnosed with lumbosacral strain and degenerative arthritis of the spine. The examiner stated that the Veteran's condition has progressed since its onset and the Veteran reported back pain when the weather changes, has an inability to sit for long periods of time, difficulty finding a comfortable position to sleep, an inability to complete yard work, and the inability to bend. The Veteran's initial range of motion was as follows: forward flexion limited to 60 degrees and extension, right and left lateral flexion, and right and left lateral rotation limited to 20 degrees. Pain was noted on examination but did not result in functional loss. The examiner stated that localized tenderness or pain on palpation of the lumbar spine was present. However, no guarding, muscle spasms, muscle atrophy, or ankylosis was present. Additionally, the examiner noted that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time or during flare ups. Therefore, the Veteran's range of motion after repeated use and during flare ups was the same as his initial range of motion. However, in an addendum opinion, the examiner noted that the Veteran's flexion was limited to 50 degrees during a flare up and after repeated use. The Board notes that during the examination the Veteran stated that he did not experience flare ups, however, the addendum opinion notes that the Veteran has flare ups that occur 2-3 times a week and last 30 minutes to an hour. The examiner noted that the Veteran's lumbar spine disability does impact his ability to work as the Veteran is unable to lift and walk for long periods of time. Additionally, the examiner stated that the Veteran's lumbar spine disability results in other functional limitations such as the inability to perform yardwork and wash his car. However, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for a lumbar spine disability. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain. The Board has also reviewed the Veteran's private medical treatment records noting consistent treatment for low back pain that, in a September 2019 record, was described as "constant, mild in severity, moderate in intensity, sharp, dull, aching, burning, shooting." However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he experiences flare ups 2-3 times a week, would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. Based on the foregoing, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for lumbar spine disability. 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. (Continued on the next page) Finally, the Court has held that a claim for a total rating based on unemployability due to service connected disabilities (TDIU), either expressly raised by a veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran has not asserted that he is totally unemployable as the result of his service connected disability. Accordingly, the Board concludes that a claim for TDIU has not been raised. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Mountford, 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.