Citation Nr: 21041424 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 13-02 944 DATE: July 9, 2021 ORDER An initial rating in excess of 20 percent for chronic lumbar strain is denied. FINDING OF FACT At no point during the appeal period did the Veteran's chronic lumbar strain result in forward flexion limited to 30 degrees, either on clinical examination or during flare-ups or with repeated use over time; ankylosis or the functional limitation equivalence of ankylosis; or IVDS with incapacitating episodes lasting at least 4 weeks in a 12-month period. CONCLUSION OF LAW The criteria for an initial rating in excess of 20 percent for chronic lumbar strain have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 2007 to January 2008 and from August 2008 to February 2010. This claim stems from a March 2011 rating decision that granted service connection for chronic lumbosacral strain and assigned the initial 20 percent rating, effective February 16, 2010. Thereafter, the matter was previously before the Board in May 2016, June 2017, and September 2020 for further evidentiary development. Substantial compliance with the Board's remand requests having been accomplished, the Board may proceed to consider the claim. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Rating The Veteran was granted service connection for his chronic lumbar strain at 20 percent disabling under 38 C.F.R. § 4.71a, DC 5237, effective February 16, 2010, in a March 2011 rating decision. The Veteran timely appealed. Accordingly, the Board will consider the extent and severity of the disability throughout the entire appeal period stemming from the initial effective date of February 16, 2010. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Court of Appeals for Veterans Claims (Court), in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. Further, in evaluating joint disabilities, 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). The Court clarified that 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); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. at 592. Additionally, the Court has stated that flare-ups must be factored into an examiner's assessment of functional loss. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes). Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula provides for assignment of a 10 percent rating when forward flexion of the thoracolumbar spine is 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 requires forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating requires forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating requires unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, DC 5242, General Rating Formula for Diseases and Injuries of the 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 is zero to 30 degrees, and left and right lateral rotation is 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. 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. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine at Note (2); see also 38 C.F.R. § 4.71a, Plate V. 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. Id. at Note (5). Any associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment, should be evaluated separately under the appropriate diagnostic code. Note (1). Alternatively, disability involving disc disease may be rated under the Formula for Rating IVDS Based on Incapacitating Episodes. That formula provides a 10 percent disability rating for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for 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 disability rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. 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. Id. at Note (1). Turning to the evidence of record, the Veteran underwent a VA examination in October 2010. His posture was noted to be erect and his gait normal. He described pain in the mid to lower spine area without any distribution, chronic and persistent. The pain was moderately severe. The Veteran denied any physician-prescribed bedrest in the prior 12 months. He treated his pain with daily Tramadol. He denied flare-ups but stated that pain was aggravated with bending, lifting, carrying, moving heavy objects, prolonged walking, and prolonged standing. He also described symptoms of lower back stiffness, spasm, weakness, and decreased motion, but denied numbness or paresthesias of the lower extremities, as well as bladder and bowel functional impairment. The Veteran walked unaided and denied use of a cane, crutches, walker, or back brace. One mile of walking was noted to take 20 minutes. He was steady and denied a history of falls. Although standing and walking in his job as a teacher increased his back pain, he was able to perform his job. His back disability also did not interfere with his activities of daily living. After 2 hours of driving, his back hurt and he needed to stretch. Upon observation, the Veteran had no kyphosis or scoliosis and normal lumbar lordosis. He had no evidence of paraspinal muscle spasm, tenderness, atrophy, weakness, or guarding. Range of motion included forward flexion to 60 degrees; extension to 25 degrees; left and right lateral flexion to 30 degrees; and left and right lateral rotation to 30 degrees, all with discomfort and pain at the endpoint. Range of motion was unchanged after 3 repetitions. There was objective evidence of painful motion without spasm, weakness, tenderness, atrophy, or guarding. Sensation was intact to pain, light touch, temperature, and vibration in both lower extremities. Muscle strength was 5 out of 5 with normal tone, bulk, dexterity, and coordination to both lower extremities. An x-ray of the lumbosacral spine revealed transitional vertebra but an otherwise normal examination. A VA general medical examination was conducted in February 2011. The examiner stated that the Veteran's overall condition had not changed since the prior VA examination. His gait was unassisted. A chest and lateral x-ray revealed degenerative changes of the thoracic spine. In his January 2013 Substantive Appeal, the Veteran stated that he was unable to bear more than approximately 10 pounds for a period longer than 10 minutes without his back becoming inflamed and stiff. It was difficult to walk, bend, or sit comfortably. Running caused excruciating pain after only a few minutes. He was unable to carry his son, approximately 25 pounds, for more than 2 or 3 minutes before his lower back locked up on him. He also had to be careful doing yardwork, since too much bending resulted in pain. The Veteran underwent another VA spine examination in December 2013. He endorsed flare-ups and described difficulty bending, stooping, carrying, lifting loads, and bearing weight during flare-ups due to pain. Range of motion included forward flexion to 80 degrees with pain at 75 degrees; extension to 20 degrees with pain at 20 degrees; right lateral flexion to 30 degrees or greater with pain at 20 degrees; left lateral flexion to 25 degrees with pain at 20 degrees; and right and left lateral rotation to 30 degrees or greater with pain at 20 degrees. The Veteran was able to perform repetitive use testing with additional limited motion of forward flexion to 70 degrees; extension to 20 degrees; right lateral flexion to 30 degrees or greater; left lateral flexion to 25 degrees; and right and left lateral rotation to 30 degrees or greater. Additional functional loss included less movement than normal and pain on movement. The examiner also stated that during flare-ups, pain would cause about 5 to 10 degrees of additional loss of range of motion in flexion and extension. There was no pain on palpation, muscle spasm, or guarding of the thoracolumbar spine. Muscle strength, reflex, and sensory testing yielded normal results. The Veteran did not have radicular pain or other signs or symptoms due to radiculopathy and no other neurologic abnormalities. There was no ankylosis of the spine. He did not have IVDS or incapacitating episodes. The Veteran denied use of assistive devices for locomotion, as well. An x-ray revealed intact disc and joint spaces. The functional impact of the disability was determined to be problems with carrying, lifting heavy loads, stooping, and bending. Another VA spine examination was conducted in August 2020. The Veteran stated that his back pain had gotten worse and limited his ability to run. Back pain could worsen to 10 out of 10 and impact his sleep. The pain was triggered by twisting motions, running, lifting, and bending. He described flare-ups of pulsating pain in the lower back which limited mobility. He treated his symptoms with Ibuprofen. Range of motion included forward flexion to 60 degrees and extension, right and left lateral flexion, and right and left lateral rotation to 30 degrees each. Pain was noted on each range of motion but did not result in functional loss. There was no evidence of pain on palpation or pain with weight-bearing. There was pain with nonweight-bearing. The examiner indicated that passive range of motion testing could not be performed or was medically inappropriate. The Veteran was able to perform repetitive use testing without additional loss of range of motion except in forward flexion which was limited to 55 degrees. With repeated use over time and during flare-ups, the examiner indicated that pain would result and range of motion would be limited to 55 degrees in forward flexion and 25 degrees in extension, right and left lateral flexion, and right and left lateral rotation. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine and there were no additional factors contributing to disability. Muscle strength, reflex, and sensory testing all yielded normal results. The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy and no other neurologic abnormalities. There was no ankylosis of the spine. The Veteran did not have IVDS or incapacitating episodes. He denied use of assistive devices for locomotion, as well. The functional impact of the disability was determined to be difficulty with bending, heavy lifting, running, and twisting motions, requiring him to take a break and stop the activity due to pain and limited mobility. He would also have pain with prolonged sitting if performing sedentary work and would need to stop and rest which might affect productivity. An addendum VA opinion was obtained in January 2021. The examiner stated that passive and nonweight-bearing range of motion testing could not be conducted at the August 2020 examination without significant burden to both the clinician and the Veteran. As such, it was medically inappropriate to perform such testing. The basis for the opinion was the Veteran's specific medical history and the physical examination. The examiner reiterated that additional loss of range of motion in terms of degrees during flare-ups or after repeated use over time included forward flexion limited to 55 degrees and extension, right and left lateral flexion, and right and left lateral rotation at 30 degrees. VA treatment records throughout the appeal period noted ongoing complaints of back pain but no other complaints, symptoms, treatment, or diagnosis. The Board notes at the outset that the VA examinations of record, taken in conjunction with records of medical treatment and the January 2021 addendum opinion, provide an adequate basis upon which to determine the extent and severity of the Veteran's chronic lumbar strain. Although range of motion limitation in terms of degrees with passive movement and nonweight-bearing was not elicited on examination, the examiner indicated such testing was medically inappropriate based on the Veteran's particular medical history and clinical examination. The Veteran stated that he experienced increased pain with prolonged standing and walking, bending, carrying, and lifting, suggesting increased pain with active and weight-bearing activities. As such, active and weight-bearing motion as captured by all examinations are more likely to represent the most severe limitation of motion caused by the disability. Although the October 2010 examiner did not provide the additional limitation during flare-ups and with repeated use over time in terms of degrees of range of motion, the December 2013 and August 2020 examiners did capture such information. As the Veteran has contended that his disability worsened over time, rather than improving, the degrees of range of motion provided by the most recent examiner likely represents the most severe limitation caused by the disability. Further, the Veteran himself has provided information regarding the limitation of his activities from which to extrapolate the extent and severity of his chronic lumbar strain. Given the totality of the information, including the Veteran's own descriptions of his limitations, the Board finds that the requirements of DeLuca, Sharp, and Correia have been adequately addressed. DeLuca v. Brown, 8 Vet. App. At 202; Sharp v. Shulkin, 29 Vet. App. at 32; Correia v. McDonald, 28 Vet. App. at 158. An initial rating in excess of 20 percent for chronic lumbar strain is denied. Based on the foregoing, the Board finds that a rating in excess of 20 percent for chronic lumbar strain is not warranted at any point during the appeal period. At no time was forward flexion limited to 30 degrees, either on clinical examination or during flare-ups or with repeated use over time. There was no evidence of ankylosis over the appeal period. Further, although the Veteran had limitation of motion, he was able to engage in the types of movement that would be prevented by ankylosis of the spine. As such, the preponderance of the evidence is against a finding that the Veteran's chronic lumbar strain resulted in ankylosis or the functional limitation equivalence of ankylosis. See Chavis v. McDonough, No. 18-2928 (U.S. Vet. App. April 16, 2021). Additionally, there was no evidence of IVDS and incapacitating episodes lasting at least 4 weeks in a 12-month period. Accordingly, a rating in excess of 20 percent is not warranted. The Board has considered whether additional ratings are warranted for the Veteran's service-connected chronic lumbar strain based on any associated objective neurologic abnormalities. See General Rating Formula for Disease and Injuries of the Spine, Note (1). However, the evidence as outlined above does not identify any radiculopathy or other neurological abnormalities associated with the Veteran's chronic lumbar strain. Thus, the Board finds no basis to award any additional separate ratings pursuant to Note (1). The Board determines that the Veteran's disability is fully capable of evaluation under the rating schedule. There is no applicable provision that would warrant a higher rating in this case. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rachel E. Jensen, 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.