Citation Nr: 21042348 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 19-34 155 DATE: July 12, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for lumbosacral strain is denied. FINDING OF FACT The Veteran's service-connected lumbosacral strain disability is manifested by no worse than forward flexion of the thoracolumbar spine greater than 60 degrees and combined range of motion of the thoracolumbar spine greater than 120 degrees. CONCLUSION OF LAW The criteria for entitlement to an initial rating in excess of 10 percent for lumbosacral strain have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from November 1997 to November 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). The issue on appeal was remanded for additional development in April 2020. Entitlement to an initial rating in excess of 10 percent for lumbosacral strain. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. This Rating Schedule is primarily a guide in the rating of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 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. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran's disability claim may require re-ratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Unless otherwise specified in the rating schedule, all disabilities are rated separately, including those arising from a single disease entity, with the exception that VA may not rate the same symptoms twice, which would constitute impermissible "pyramiding." 38 C.F.R. § 4.14; Cullen v. Shinseki, 24 Vet. App. 74, 81-82 (2010). 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 course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). It is noted, however, that the applicable rating criteria associated with Diagnostic Codes 5237 and 5243 are unchanged. Disabilities of the spine, including under Diagnostic Code 5237, are rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. A 100 percent rating is provided for unfavorable ankylosis of the entire spine. A 50 percent rating is provided for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is provided for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 20 percent rating is provided 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 10 percent rating is provided 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. When rating diseases and injuries of the spine, any associated objective neurological 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). 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. Normal combined range of motion of the thoracolumbar spine is 240 degrees. Normal ranges of motion for each component of spinal motion provided are the maximum usable for calculating the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). The rating criteria for intervertebral disc syndrome (IVDS) require rating of the disability either on the total duration of incapacitating episodes resulting from IVDS over the past 12 months, or by combining under 38 C.F.R. § 4.25 separate ratings of its chronic orthopedic and neurologic manifestations with rating for all other disabilities, whichever method results in the higher rating. A 20 percent rating is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of least four weeks but less than six weeks during the past 12 months. 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Id. Such evidence may include facial expression, such as wincing, muscle spasm, and crepitation. See 38 C.F.R. § 4.59. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45. Consideration of a higher rating for functional loss, to include during flare ups, due to these factors accordingly is warranted for Diagnostic Codes predicated on limitation of motion. DeLuca v. Brown, 8 Vet. App. 202 (1995). An adequate orthopedic examination should record the range of motion for pain on active motion and passive motion and in weight bearing and non-weight bearing, address the necessary findings to evaluate functional loss during flare-ups, or clearly explain why the required testing cannot be completed or is not necessary. See Correia v. McDonald, 28 Vet. App. 158 (2016). The provisions of 38 C.F.R. §§ 4.40, 4.45 apply when considering whether limitation of motion of a joint has resulted in the functional equivalence of joint ankylosis. Chavis v. McDonough, 2021 U.S. App. Vet. Claims LEXIS 660 (Apr. 16, 2021). An examination does not need to be conducted during an actual flare-up in order to account for additional functional impairment. Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). Instead, examiners are asked to estimate the functional impairment experienced during a flare-up, considering all competent evidence of functional loss that is available in the record. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. However, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3. The Veteran contends that an increased rating is warranted for her service-connected lumbosacral strain. In statements in support of her claim she reported experiencing daily pain that limited her ability to stand or sit for prolonged periods. VA records show she submitted an intent to file a claim on July 30, 2018, and that an application received in September 2018 was accepted as a request to reopen a previously denied service connection claim for a low back disorder. Service treatment records dated in November 1999 noted the Veteran was treated for thoracic and lumbar spine strain. A December 1999 report noted an assessment of low back pain/mid back pain with muscle tightness. Social Security Administration (SSA) records show an April 2016 determination found the Veteran was not disabled. The Veteran's reported work history indicated employment as a cab driver from 2002 to 2016. VA examination in October 2018 included a diagnosis of lumbar strain. It was noted the Veteran complained on ongoing back pain with flare-ups of increased symptoms in cold weather. Range of motion studies revealed normal motion with forward flexion to 90 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation 30 degrees. There was pain on examination that did not cause functional loss. There was no evidence of pain with weight bearing, localized tenderness, or pain to palpation. There was no additional limitation in range of motion following repetitive-use testing. The examination was neither medically consistent nor inconsistent with the statements describing functional loss with repetitive use over time. The examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups. There was no evidence of guarding or muscle spasm of the thoracolumbar spine. Muscle strength was 5/5 to hip flexion, knee extension, ankle plantar flexion, and ankle dorsiflexion, and great toe extension, bilaterally. There was no muscle atrophy. Deep tendon reflexes were normal at the knees and ankles. Sensation to light touch was normal. There was no radiculopathy and no ankylosis ot the thoracolumbar spine. There were no other neurological abnormalities or findings related to the thoracolumbar spine and the examiner noted the Veteran did not have IVDS. No assistive devices were used as a normal mode of locomotion. Diagnostic testing did not demonstrate arthritis. The examiner found the thoracolumbar spine condition did not impact the Veteran's ability to work. It was additionally noted that there was evidence of pain on passive range of motion without evidence of pain on non-weigh bearing use. Private treatment records dated in November 2018 from the Veteran's chiropractor, M.M., noted symptoms including a burning, sharp, and sore pain to the lumbar spine estimated at level eight on a ten-point scale that radiated down the legs. She reported having a marked limitation of physical activity and interference with activities of daily living. The examiner noted objective evidence of tenderness to palpation in the vertebral segments and surrounding structures at L4 and L5. Range of motion findings were reported as flexion: 30/60 with level eight pain and decreased motion, extension: 25/25, left rotation: 20/30 with level eight pain and decreased motion, right rotation: 20/30 with level eight pain and decreased motion, left lateral bending: 25/25, and right lateral bending: 25/25. Strength testing revealed mild weakness to all motions. There was decreased sensation to light touch in the left L5 and S1 nerve distribution. Orthopedic testing was positive on the left to Milgram's, Patrick's Fabere, and straight leg raise tests. Valsalva's testing was also positive. Kemp's testing was positive bilaterally. The diagnoses included sciatica and IVDS with radiculopathy to the lumbosacral region. A November 2018 VA back conditions disability benefits questionnaire (DBQ) attributed to M.M. but unsigned included diagnoses of mechanical back pain, IVDS, and radiculopathy. It was noted the Veteran reported walking for three to five minutes caused numbness and lower back pain radiating to the left thigh and foot with weakness. She reported flare-ups that disrupted sleep and required the use of a brace. She described her functional loss as including an inability to ascend and descend stairs and painful walking and standing. Range of motion studies revealed forward flexion to 60 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 15 degrees, and left lateral rotation 15 degrees. The abnormal motion contributed to functional loss. There was no change in motion after repetitive-use testing. There was localized tenderness or pain to palpation at L4-L5, the bilateral sacroiliac joints, and the paraspinal musculature. The examiner noted the Veteran had an abnormal gait due to guarding. Less movement than normal, weakened movement, excess fatigability, incoordination, instability of station, disturbance of locomotion, interference with sitting, and interference with standing were contributing factors of disability. It was noted that an estimate of range of motion due to pain and/or functional loss during flare-ups or repeated use was not feasible, but no description of the functional loss was provided. Weakness to the left leg and foot was noted as contributing factor of disability not associated with limitation of motion. Muscle strength testing was 4/5 to the lower extremities. There was no evidence of muscle atrophy or ankylosis. Deep tendon reflexes were normal at the knees and ankles. Sensation to light touch was normal in the right lower extremity and decreased in the left lower extremity to the thigh/knee, lower leg/ankle, and foot/toes. Vibration sensation was also decreased in the left lower extremity. Straight leg rating testing was negative on the right and positive on the left. The examiner found the Veteran had radiculopathy with symptoms of severe constant pain, severe intermittent pain, moderate dull pain, moderate paresthesias and/or dysesthesias, and mild numbness in the left lower extremity. There was mild intermittent pain in the right lower extremity. Positive Valsava and Milgram's findings were noted to be objective findings of radiculopathy. There was moderate severity to the sciatic nerve in the left lower extremity. The examiner noted the Veteran had IVDS to the thoracolumbar spine with episodes of bed rest prescribed by a physician during the past 12 months of at least six weeks. Assistive devices used as a normal mode of locomotion included a brace, regularly. It was noted that diagnostic testing documented arthritis. The Veteran's back conditions impacted her ability to perform any type of occupational task described as limitations to walking up and down stairs, difficulty with ramps, problems standing or sitting for prolonged periods of time, and pain with lifting over 25 pounds. VA treatment records dated in March 2019 noted a physical assessment revealed no current report of pain. A neurological evaluation noted the Veteran moved all extremities equally and purposefully without tremors of weakness. There was no sensory deficit. A musculoskeletal evaluation revealed full range of motion to all joints and full weight bearing without assistance or assistive devices. The examiner noted her gait was slow and steady with weakness in the lower extremities. A June 2019 emergency department report noted a neurological assessment with symmetrical strength in all extremities and no reported numbness. A September 2019 neurological evaluation revealed no focal leg weakness. VA examination in December 2020 included a diagnosis of lumbosacral strain. It was noted that the Veteran complained of chronic, constant, daily pain with increased pain on prolonged standing or sitting. She reported experiencing numbness in the lower back area over the hip after walking long distances and indescribable pain if she bent over too far. The examiner noted she reported no flare-ups of the thoracolumbar spine. Range of motion studies revealed forward flexion to 90 degrees, extension to 25 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 25 degrees, and left lateral rotation 25 degrees. There was pain on examination that caused functional loss and pain with weight bearing. There was additional limitation in range of motion following repetitive-use testing and with repeated use over time due to pain with forward flexion to 85 degrees, extension to 25 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 25 degrees, and left lateral rotation 25 degrees.. The examination was medically consistent with the statements describing functional loss with repetitive use over time. There was no evidence of guarding and muscle spasm of the thoracolumbar spine. Muscle strength was 5/5 to the lower extremities. There was no muscle atrophy. Deep tendon reflexes were hypoactive at the knees and normal at the ankles. Sensation to light touch was normal in the lower extremities. Straight leg raise testing was negative. There was no evidence of radiculopathy and no ankylosis of the spine. There were no other neurological abnormalities or findings related to the thoracolumbar spine. The Veteran did not have IVDS to the thoracolumbar spine. It was noted that it was not feasible to perform passive range of motion in a safe and reasonable manner. There was objective evidence of pain in a non-weight bearing position. The examiner found the Veteran's thoracolumbar spine condition impacted her ability to work with symptoms that impacted her normal functional ability in that she stated she could not sit or stand for too long. It was noted that she was unemployed and lost one week or less of work in the last 12 months. Private treatment records dated in August 2020 noted an X-ray study of the lumbar spine revealed minimal anterior degenerative spurring at L4-L5 with an otherwise negative examination. The intervertebral disc spaces were noted to be well preserved and the sacroiliac joints were within normal limits. An April 2021 VA medical opinion found that the reported findings on a November 2018 DBQ appeared to be an outlier due to inconsistency with examinations three weeks earlier and 10 months later. The examiner noted that the October 2018 report indicated normal initial range of motion, that the Veteran reported flares, and that there was no further loss of motion observed on repetitive use. While acknowledging that the discrepancy in the November 2018 examination may have been based upon the Veteran's specific symptoms at the time of examination, the examiner determined that the findings appeared to be an outlier since no explanation was provided for the change from the examination findings three weeks earlier or for absence of any report of motion loss on observed repetitive use. The examiner stated that with flares it was at least likely as not that the Veteran would lose from 0 to 5 degrees across all planes. Based upon the evidence of record, the Board finds the Veteran's service-connected lumbosacral strain disability is manifested by no worse than forward flexion of the thoracolumbar spine greater than 60 degrees and combined range of motion of the thoracolumbar spine greater than 120 degrees. The medical findings on VA examinations in October 2018 and December 2020 are found to be more persuasive as to the degree of severity of the Veteran's service-connected disability. The findings upon these examinations demonstrating no signs or symptoms of radiculopathy, IVDS, or neurological abnormalities or findings related to the thoracolumbar spine are consistent with the overall evidence of record. It is additionally significant that the August 2020 private X-ray study of the lumbar spine revealed the intervertebral disc spaces were well preserved and that the sacroiliac joints were within normal limits. Although a November 2018 DBQ and treatment records from the Veteran's private chiropractor reported more severe limitations of motion and included diagnoses of IVDS, the Board finds the reports are not credible due to inconsistency with the other evidence of record. In determining whether evidence submitted by a claimant is credible, VA may consider internal consistency, facial plausibility, and consistency with other evidence. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Board notes that the November 2018 private medical findings are inconsistent not only with VA findings from October 2018 to December 2020, but also with the August 2020 private X-ray findings of record indicating well preserved intervertebral disc spaces in the lumbar spine. The opinion of the April 2021 VA examiner that the November 2018 private report was an outlier due to inconsistency with the other evidence of record is persuasive. The Board notes, however, that an adequate discussion of functional loss includes consideration of manifest functional loss during flare-ups. Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Flare-ups must be quantifiable and must result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because VA regulations under 38 C.F.R. § 3.344(a) and 38 C.F.R. § 4.1 address the stabilization of ratings, flare-ups must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. The degrees of disability specified by VA examinations in this case are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. Any credible reports indicative of exacerbation or flare-ups are found to be not quantifiable nor of sufficient duration to warrant a change in evaluation without violating the spirit of Mitchell and the provision of 38 C.F.R. § 4.1 and 38 C.F.R. § 3.344(a) regarding stabilization of ratings. The Board acknowledges that the Veteran is competent to report observable symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, lay persons are not competent to identify a specific level of disability. It is also noted that competent evidence concerning the nature and extent of the Veteran's service-connected disabilities have been provided by VA medical professionals who have examined her. These medical findings directly address the criteria under which the disability is evaluated, including whether a specific symptom caused a level of impairment required for a higher disability rating. The Board accords these medical findings greater weight than any subjective complaints of increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Therefore, the Board finds that the preponderance of the evidence in this case is against the claim for any higher or additional separate ratings. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Douglas 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.