Citation Nr: 21042072 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 16-03 163 DATE: July 11, 2021 ORDER A rating higher than 10 percent prior to November 1, 2017, and higher than 20 percent as of November 1, 2017, for a lumbar spine disability is denied. FINDINGS OF FACT 1. Prior to November 1, 2017, the evidence indicates that the Veteran's lumbar spine disability manifested in forward flexion of 80 degrees, with a combined range of motion of the thoracolumbar spine greater than 120 degrees; with no evidence of muscle spasm or guarding resulting in abnormal gait or abnormal spinal contour. 2. As of November 1, 2017, the evidence indicates that the Veteran's lumbar spine disability manifested in forward flexion greater than 30 degrees, with no evidence of ankylosis. CONCLUSION OF LAW The criteria for a rating higher than 10 percent prior to November 1, 2017, and higher than 20 percent as of November 1, 2017, for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1994 to June 1996. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision. Disability ratings are determined by the application of VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). Lumbar Spine The Veteran's lumbar spine disability is rated under the General Rating Formula for Diseases and Injuries of the Spine for Diagnostic Codes 5235 to 5243. Diagnostic Code 5243 provides that intervertebral disc syndrome (IVDS) is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The General Rating Formula for Diseases and Injuries of the Spine provides that a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the cervical spine greater than 120 degrees, but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour. A 20 percent rating is assigned 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 assigned for forward flexion of the thoracolumbar spine of 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is awarded for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 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 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. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Notes (2), (4). 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 (0 degrees) always represents favorable ankylosis. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (6). The criteria are applied with and 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. 38 C.F.R. § 4.71a. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion. Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (3). During the pendency of the appeal, VA issued a final rule revising the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a. 85 Fed. Reg. 76,453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). The final rule went into effect February 7, 2021. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. The Board notes that the new rating criteria did not make amendments to DC 5237. With regards to other potentially relevant codes, specifically DC 5003 for degenerative arthritis, the amendments also did not make any substantive changes. At a May 2013 VA examination, the Veteran reported that the lower back tensed up when walking. The Veteran also reported feeling spasms. On examination, forward flexion of the thoracolumbar spine was to 80 degrees, with no objective evidence of painful motion. Extension was to 30 degrees. The Veteran was able to perform repetitive use testing with no additional loss of range of motion. The examiner noted less movement than normal. There was no localized tenderness or pain on palpation. There was no evidence of guarding or muscle spasm noted. Muscle strength was normal with no evidence of muscle atrophy. The examiner noted no radiculopathy or neurological symptoms. No functional impact was noted. At a November 2017 VA examination, the Veteran reported back pain with activity such as vacuuming, prolonged standing and prolonged walking. The Veteran reported flareups within the prior year. On examination, forward flexion of the thoracolumbar spine was to 70 degrees, and extension was to 15 degrees. Right and left lateral flexion and rotation were each to 30 degrees. Range of motion contributed to functional loss in the form of interference with bending. There was pain noted on examination. The Veteran was able to perform repetitive use testing, however the examiner was unable to say if additional factors limited functional ability with repeated use over time or flareups. There was no evidence of muscle atrophy or ankylosis. No radiculopathy or neurological symptoms were noted. The examiner noted functional impact in the form of interference with prolonged walking or standing and heavy lifting. At a December 2019 VA examination, the Veteran reported persistent pain with intermittent episodes of more severe pain triggered by physical activity. The Veteran also reported numbness and tingling down the legs. Flareups were reported as spasms and tensing up, making it hard to get up. The Veteran also reported crippling pain after standing for a long time. On examination, forward flexion was to 70 degrees and extension was to 5 degrees. Pain was noted on examination. Range of motion contributed to functional loss in the form of reduced capacity for bending, lifting, twisting, and turning. The Veteran was able to perform repetitive use testing, with no additional loss of range of motion or functional impact. The examiner found that during flareups, pain significantly limited functional ability, limiting forward flexion to 65 degrees and extension to 0 degrees. There was no evidence of muscle atrophy or ankylosis. The examiner found functional impact in the form of an inability to perform any heavy lifting, reduced capacity for prolonged sitting, standing, and walking, and an inability to jog, run or jump. VA and private medical records are consistent with the VA examination reports, indicating a history of chronic lower back pain causing limitation of motion. A September 2019 VA medical record indicates forward flexion was limited to 30 degrees. No other records contain findings worse than those noted on VA examination. After review of the record, the Board finds that the preponderance of the evidence is against a finding that a rating higher than 10 percent is warranted prior to November 1, 2017. The evidence during this period indicates that forward flexion of the thoracolumbar spine was greater than 60 degrees, and that combined range of motion was greater than 120 degrees. Further, the May 2013 VA examiner found no evidence of guarding or muscle spasm. As of November 1, 2017, the Board finds that the preponderance of the evidence is against a finding that a rating higher than 20 percent is warranted for the Veteran's lumbar spine disability. Both the November 2017 and December 2019 VA examinations found forward flexion of greater than 30 degrees within this period. The Veteran's reports of pain and functional loss are adequately considered by the VA examination reports and findings of motion limitation. There is no evidence of favorable ankylosis of the entire thoracolumbar spine, even considering other functionally limiting factors. While a September 2019 VA medical record notes forward flexion to 30 degrees, no other contemporaneous medical records, including a subsequent VA examination, found forward flexion limited to 30 degrees. The VA examination several months after this record found forward flexion to no worse than 65 degrees. Therefore, the Board finds that the September 2019 finding is an outlier, and not representative of the Veteran' s lumbar spine disability as of November 1, 2017. The Board has considered whether the application of another diagnostic code may enable a higher rating, including DC 5003 for degenerative arthritis. However, after review, the Board finds that no other diagnostic code provides for a higher or separate rating. Further, there is no evidence of incapacitating episodes resulting from intervertebral disc syndrome, and thus a higher rating under the IVDS formula is not proper. The Board notes that the evidence indicates radiating pain in the right and left legs; however, the Veteran is already separately rated for service-connected radiculopathy of the lower extremities. In deciding this appeal, the Board has analyzed the credibility and probative value of the evidence, accounting for the evidence which is found to be persuasive or unpersuasive. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran is competent to report symptoms, such as pain, because that requires only personal knowledge as it comes to her through her senses. Layno v. Brown, 6 Vet. App. 465 (1994). However, the objective evidence does not demonstrate symptoms that more nearly approximate a higher rating under the schedule of ratings for the musculoskeletal system during the appeal period. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating higher than 10 percent prior to November 1, 2017, and higher than 20 percent as of November 1, 2017, for a lumbar spine disability. Therefore, the claim for increased rating is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Ahmad 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.