Citation Nr: 21032553 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-36 005 DATE: May 27, 2021 ORDER A 20 percent rating, but no more, for a lumbar strain is granted, subject to the payment of monetary benefits. A rating in excess of 10 percent for reactive airway disease is denied. FINDINGS OF FACT 1. The Veteran served on active duty in the United States Marine Corps from March 1990 to May 1992 and in the United States Army from November 2002 to August 2003. 2. The low back disability has been manifested by subjective complaints of low back pain with sharp shooting pains radiating to the lower extremities and intermittent back spasms; objective findings include flexion to 60 degrees when considering painful motion resulting in loss of function after repetitive use and during flare-ups, intervertebral disc syndrome (IVDS) not causing any incapacitating episodes over the previous 12 months; guarding, and ankylosis have not been found. 3. The respiratory disability has been manifested by pre-bronchodilator pulmonary function testing (PFT) results of no less than 89 percent of forced expiratory volume in one second (FEV-1) and no less than 84 percent of Forced Expiratory Volume in one second/Forced Vital Capacity (FEV-1/FVC), with intermittent inhalational bronchodilator therapy. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating, but no more, for lumbar strain have been met. 38 U.S.C. §§ 1155, 5107(a), 5107A (2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242 (2020). 2. The criteria for a rating in excess of 10 percent for reactive airway disease have not been met. 38 U.S.C. §§ 1155, 5107(a), 5107A (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.97, DC 6699-6602 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In November 2018, the Board remanded the appeals for additional development. The case has now been returned to the Board for further appellate action. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Lumbar Strain The Veteran's lumbar strain disability has been rated at 10 percent under DC 5242. The Board will consider all relevant diagnostic codes. 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). 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 amended 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 pre-amended regulation 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. Therefore, the Board will consider the claim under the pre-amended criteria prior to February 7, 2021 and both the pre-amended and amended rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. A rating in excess of 10 percent will be warranted when the objective medical evidence shows the following: forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees (20%); combined range of motion of the thoracolumbar spine not greater than 120 degrees (20%); muscle spasms or guarding that is severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis (20%); incapacitating episodes of IVDS having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months (20%); or, in the absence of limitation of motion, degenerative arthritis with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations (20%). The amended regulations clarify that DC 5243 is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign DC 5242 for all other disc diagnoses. No other changes were made to the rating criteria for the spine. Turning to the medical evidence, in a November 2013 VA examination, the Veteran reported flare-ups causing increased pain and decreased range of motion and requiring rest and medication. As to range of motion, flexion was reported to 70 degrees, with evidence of painful motion at 50 degrees, extension was to 20 degrees, with evidence of painful motion at 15 degrees, right and left lateral flexion was to 30 degrees or greater, right and left lateral rotation was to 30 degrees or greater. The combined range of motion was 210 degrees. The examiner opined that the Veteran had functional loss, functional impairment, and/or additional loss of range of motion after repetitive use, due to less movement than normal, weakened movement, and pain on movement. The examination was not conducted during a flare-up. The examiner opined that the range of motion lost during a flare-up could not be determined without resorting to mere speculation. There was no localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine. There was no muscle spasm or guarding of the thoracolumbar spine. Muscle strength testing was normal. There was no IVDS. Next, on a February 2020 VA examination, the Veteran reported constant low back pain with sharp shooting pains that radiated to his lower extremities and intermittent back spasms. He indicated experiencing severe flare-ups a few times a week, lasting half to a full day and alleviated by Flexeril PRN, using a heating pad. As to range of motion, flexion was reported to 65 degrees, extension was to 25 degrees, right and left lateral flexion was to 20 degrees or greater, right and left lateral rotation was to 30 degrees or greater. There was pain on all ranges of motion. The combined range of motion was 190 degrees. Pain was noted on examination but it did not result in or cause functional loss. There was evidence of pain with weight bearing and non-weight bearing testing. There was no localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. There was no ankylosis or guarding or muscle spasms. There was no additional loss of function or range of motion after three repetitions. Although the Veteran was not being examined immediately after repetitive use over time, the examiner opined that the examination of the Veteran neither supported nor contradicted his statements describing functional loss with repetitive use over time. The examiner opined that pain and fatigue significantly limited functional ability with repetitive use over time. Range of motion was to 60 degrees forward flexion. Extension was to 30 degrees. Right and left lateral flexion was to 15 degrees and right and left lateral rotation was to 25 degrees. The examiner diagnosed IVDS but noted that it had not caused any incapacitating episodes over the previous 12 months. The examiner also diagnosed degenerative disc disease with bilateral lower extremity radiculopathy status post discectomy and rhizotomies and lumbar strain with herniated nucleus pulpous. Based on the above, a 20 percent rating is warranted for lumbar strain. In this regard, the evidence shows that after repetitive use over time and during flare-ups, forward flexion of the thoracolumbar spine was greater than 30 degrees but not greater than 60 degrees. Notably, the February 2020 VA examiner indicated that while flexion was to 65 degrees, after repetitive use over time and during a flare-up, flexion was to 60 degrees, which is consistent with the criteria for a 20 percent rating. However, a rating in excess of 20 percent is not warranted at any time during the appeal. A rating in excess of 20 percent will be warranted when the objective medical evidence shows the following: forward flexion of the thoracolumbar spine 30 degrees or less (40%); favorable ankylosis of the entire thoracolumbar spine (40%); incapacitating episodes of IVDS having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40%). In this regard, forward flexion of the thoracolumbar spine was not to less than 60 degrees, even considering pain or other functional loss due to any other factor. Further, ankylosis of the thoracolumbar spine was not shown; the Veteran retained motion of the thoracolumbar spine, and ankylosis was not found. The Veteran submitted private and VA medical records documenting treatment of his back disability but this evidence did not include range or motion findings that would warrant a higher rating. Further, the Veteran has been diagnosed with IVDS, however he has not claimed nor has the medical evidence shown incapacitating episodes of IVDS (defined as a period of acute signs and symptoms that requires bedrest prescribed by a physician). Therefore, a rating in excess of 20 percent is not warranted at any point during the appeal period. Reactive Airway Disease The Veteran's reactive airway disease disability has been rated at 10 percent under DCs 6699-6602, which is rated by analogy to asthma. A rating in excess of 10 percent will be warranted when the objective medical evidence shows the following: a 30 percent rating is assigned with the following pulmonary function test results: FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. a 60 percent rating is assigned for an FEV-1 of 40 to 55 percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. Turning to the evidence, at a July 2013 VA examination, the Veteran reported wheezing/tightness in his chest and shortness of breath when he walked fast or when he exerted himself and he used albuterol as needed. He used intermittent inhalational bronchodilator therapy but no oral or parenteral medications to include corticosteroids. He did not have oxygen output therapy. PFT results reflected the following pre-bronchodilator results: FVC was 84 percent predicted; FEV-1 was 89 percent predicted; and FEV-1/FVC was 84 percent. Post-bronchodilator results were: FVC at 86 percent, FEV-1 at 93 percent, and FEV-1/FVC was 86 percent. The examiner noted that the FEV-1 test result most accurately reflected the Veteran's level of disability. At a February 2020 VA examination, the Veteran reported recurring bronchitis and pneumonia and constant shortness of breath. He sought further medical attention where he was prescribed Trelegy which helped with condition but discontinued due to difficulties with insurance. He did not used any oral or parenteral medications, to include corticosteroids and bronchodilators. Outpatient oxygen therapy was not required. There were no episodes of respiratory failure. PFT results reflected the following pre-bronchodilator results: FVC was 78 percent predicted; FEV-1 was 92 percent predicted; and FEV-1/FVC was 117 percent. Post-bronchodilator results were: FVC at 83 percent, FEV-1 at 96 percent, and FEV-1/FVC at 116 percent. The examiner noted that the FVC test result most accurately reflected the Veteran's level of disability. Based on the above, a rating in excess of 10 percent is not warranted. Notably, the Veteran's reactive airway disease most severely manifested in pre-bronchodilator PFT results of 89 percent for FEV-1 during the July 2013 VA examination and 92 percent during the February 2020 VA examination. Pre-bronchodilator PFT results of 84 percent for FEV-1/FVC during the July 2013 VA examination and 117 percent during the February 2020 VA examination. Further, the PFT findings and use of an inhaler are not productive of FEV-1 of 56 to 70 percent predicted, or FEV-1/FVC of 56 to 70 percent; or daily inhalational or oral bronchodilator therapy or inhalational anti-inflammatory medication related to this specific disability. There is no probative evidence to the contrary. Thus, the medical evidence does not support a rating in excess of 10 percent. With respect to both claims, the Board has considered the Veteran's lay statements that his disabilities are worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of these disorders according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which these disabilities are evaluated. Moreover, as the examiners have the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords these medical opinions great probative value. As such, these records are more probative than the Veteran's subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable, and the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Grzeczkowicz 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.