Citation Nr: 21040843 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 16-05 210 DATE: July 7, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for status post lumbar laminectomy and fusion L4-L5, L5-S1 ("back disability") is denied. FINDING OF FACT Throughout the appeal period, the Veteran's back disability was productive of forward flexion limited to, at worst, 50 degrees and pain. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for a back disability have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5237, 5242, 5243 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from April 1967 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2021. A transcript of that hearing has been associated with the claims file. This case was previously before the Board in March 2021, at which time the issue currently on appeal was remanded for additional development. The case has now been returned to the Board for further appellate action. Increased Rating Back Disability The Veteran has contended that his back disability is worse than that accounted for by the currently assigned rating. In December 2011, the Veteran had a VA examination. He described constant and severe low back pain radiating to his legs, stiffness, spasms, decreased motion, numbness, and weakness of the spine and leg. His back pain was exacerbated by physical activity. He reported experiencing flare-ups affecting laying and staying down. He related that he was functionally limited in motion of the joint, walking, sitting, standing, and turning. He added that it hurt to cook, take a shower, and hug his grandchildren. He stated that he experienced falls due to his back disability. He added that he experienced erectile dysfunction (ED) secondary to his back disability. Upon physical evaluation, the Veteran's gait was slow, and he constantly used a cane. He demonstrated forward flexion to 60 degrees with pain at 60 degrees, extension to 10 degrees with pain at 10 degrees, right and left lateral flexion to 15 degrees each with pain at 15 degrees, and right and left lateral rotation to 15 degrees each with pain at 15 degrees. Following repeated use, extension ended at 15 degrees. However, there was no additional limitation in forward flexion, right and left lateral flexion, or right and left lateral rotation after repeated use. The Veteran had functional loss, to specifically include weakened movement and pain on movement. There was no evidence of tenderness, pain to palpitation, guarding, or muscle spasm. In the past twelve months, his IVDS resulted in incapacitating episodes of less than one week. He shared that some days he remained in bed because his medications did not help. In April 2021, the Veteran was afforded an additional VA examination. He reported daily flare-ups and tingling in his left leg, precipitated by prolonged standing. Upon physical evaluation, he demonstrated forward flexion to 50 degrees, extension to 15 degrees, right and left lateral flexion to 15 degrees each, and right and left lateral rotation to 15 degrees each. Passive range of motion remained the same. There was evidence of pain with weight bearing which caused functional loss such as difficulty with prolonged standing. There was evidence of pain on palpitation and/or localized tenderness, but it did not result abnormal gait or spinal contour. Following repeated use, there was no additional loss of function or limitation of motion. Pain, fatigability, weakness, lack of endurance, or incoordination did not significantly limit functional ability with repeated use over time or with flare-ups. He had some reduced muscle strength, but no guarding or muscle spasm. There was no evidence of ankylosis. The examiner indicated that the Veteran's IVDS was not incapacitating. Further, the examiner diagnosed the Veteran with radiculopathy, lower left extremity. While a review of private and VAMC treatment records show that the Veteran has received additional treatment for back pain; there is no indication that his symptomatology is manifestly different from the findings discussed above. Upon review of the record, the Board finds that a higher rating is not warranted throughout the appeal period. In this regard, the Veteran did not exhibit forward flexion of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. At most, the Veteran's forward flexion was limited to 50 degrees. Although the Veteran has IVDS, there is no evidence that his IVDS was incapacitating for at least a total duration of at least four weeks but less than six weeks during the past twelve months. Furthermore, the Veteran has already been service-connected for his surgical scar. The Board acknowledges the Veteran's increased pain; however, pain alone does not warrant a higher rating unless there is functional loss. Mitchell v. Shinseki, 24 Vet. App. 32, 33, 43 (2011). Additionally, the examiner specifically considered any additional limitation of function or motion due to pain, weakness, lack of endurance, fatigability, or incoordination when reporting the Veteran's range of motion measurements, to include following repeated use over a period of time or during a flare-up. Therefore, even with consideration of all pertinent disability factors, there remains no reasonable basis for assignment of a rating in excess of 20 percent for the Veteran's back disability. As such, a higher initial rating is not warranted. 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5237-5243. Consideration has been given to assigning separate ratings for neurological abnormalities or chronic neurologic manifestations. The record reflects that the Veteran is already service-connected for sciatic radiculopathy, lower left extremity. While the Veteran reported ED secondary to his back disability, the examiners found that his back disability did not result in any associated objective neurologic abnormalities other than radiculopathy and IVDS. 38 C.F.R. § 4.71a, General Rating Formula, Note 1. The Board has considered the Veteran's hearing testimony regarding the severity of his symptoms. Certainly, laypersons are competent to attest to physical symptoms that are experienced or observed. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Board finds that the lay evidence does not establish a greater degree of functional impairment than that contemplated by the currently assigned rating. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). (Continued on the next page) Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to an initial rating in excess of 20 percent for the Veteran's back disability is not warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Ware, 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.