Citation Nr: 21041721 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 14-06 390 DATE: July 10, 2021 ORDER An initial 20 percent rating for lumbar spine strain is granted, subject to controlling regulations governing the payment of monetary awards. FINDING OF FACT The Veteran's lumbar spine strain is manifested by, at most, forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. CONCLUSION OF LAW The criteria for an initial 20 percent rating, but no higher, for lumbar spine strain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2010 to December 2011 with an earlier period of active duty for training from November 2008 to April 2009. The case is on appeal from a March 2013 rating decision. Most recently, in February 2020, the Board remanded the matter for additional development. Additional evidence was received subsequent to the most recent supplemental statement of the case issued in April 2021. As the evidence is not pertinent to the claim on appeal, a remand for RO consideration of the evidence is not necessary. See 38 C.F.R. § 20.1305(c). 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). An initial rating higher than 10 percent for lumbar spine strain. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. 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. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. During the pendency of this appeal, VA amended its rating criteria with regards to 38 C.F.R. § 4.71a Schedule of Ratings - Musculoskeletal System, effective February 7, 2021. However, there were no changes made regarding DC 5237. 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. 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."). Analysis The Veteran contends that he is entitled to a higher rating for his back disability because flare-ups of his back symptoms cause functional loss. The initial 10 percent rating for lumbar spine strain was assigned under 38 C.F.R. § 4.71a, DC 5237. Pursuant to the Board's February 2020 remand, the Veteran was afforded a VA back examination in April 2021. The report of examination reflects moderate to severe flare ups of back symptoms resulting in functional loss due to pain, weakened movement, excess fatigability, and/or incoordination, occurring at least once a week and lasting several days, alleviated only with rest. Although the examiner estimated only an additional five degrees of forward flexion lost during flare ups, in view of the February 2013 VA examination report showing functional loss resulting in forward flexion of the thoracolumbar to 75 degrees due to pain, excess fatigability, and interference with sitting, standing, and/or on weight bearing, as well as additional functional loss during flare-ups precipitated by bending and sleeping on his back, together with the January 2017 VA examination report reflecting flare-ups of back symptoms, as well as inability to work in an occupation that requires bending, lifting, carrying, etc., the Board finds the Veteran's back disability more closely approximates the criteria for an initial 20 percent rating, particularly when resolving doubt in the Veteran's favor. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Although the Board is granting an initial higher 20 percent rating, as reasonable doubt was already applied in granting the 20 percent rating, a higher rating is clearly not warranted. (Continued on the next page) The Board notes ankylosis is not shown, or even functional ankylosis as the evidence shows the Veteran retains some range of motion even when painful motion, flare-ups and other factors are considered. In addition, the Veteran does not have IVDS and/or 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. Moreover, there is no disc diagnosis. See 38 C.F.R. § 4.71a Schedule of Ratings - Musculoskeletal System, DC 5242, 5243, effective February 7, 2021. Further, the lay and medical evidence of record is against a finding that the Veteran has any neurological abnormality associated with his lumbar spine disability. See April 2021 & January 2017 VA examinations. In sum, the Board finds the evidence supports an initial 20 percent rating for lumbar spine strain. Thus, an initial 20 percent rating is warranted for lumbar spine strain. The preponderance of the evidence is against an initial rating higher than 20 percent for lumbar spine strain; thus, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Therefore, an initial rating higher than 20 percent for lumbar spine strain is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Taylor 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.