Citation Nr: 22064458 Decision Date: 11/17/22 Archive Date: 11/17/22 DOCKET NO. 18-35 767 DATE: November 17, 2022 ORDER Entitlement to an initial increased evaluation in excess of 10 percent for lumbosacral strain (back disability) is denied. FINDING OF FACT The Veteran's back disability has been manifested by pain and a range of motion greater than 60 degrees of flexion and a combined range of motion greater than 120 degrees. There has been no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, ankylosis, or incapacitating episodes. CONCLUSION OF LAW The criteria for an initial increased disability rating in excess of 10 percent for a back disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1999 to June 2003; September 2003 to April 2008; September 2012 to January 2015; June 2016 to February 2017; and July 2019 to March 2020. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran, through his representative, indicated in September 2022 correspondence that he desired to waive any right to review by the Agency of Original Jurisdiction (AOJ) of any additional evidence submitted in this case. Therefore, while pertinent evidence has been submitted since the statement of the case in April 2018, to include November 2018 and June 2020 VA back examinations, the Board deems that the right to review of that evidence by the AOJ has been waived and the claim is, thus, ripe for adjudication. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. 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 rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See 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). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1377 (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C. § 5107 (a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). The Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Under the General Rating Formula, the regulations provide for 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 is 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 height. 38 C.F.R. § 4.71a. A 20 percent rating is assigned when 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 there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent rating is warranted if the medical evidence shows forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. Id. These ratings are warranted if the above-mentioned manifestations are present, 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. 38 C.F.R. § 4.71a, DCs 5235 to 5243. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The Veteran was provided with a VA examination in August 2015. The Veteran was diagnosed with lumbar spine strain, with intervertebral disc syndrome. The Veteran indicated flare-ups that limit range of motion. Range of motion revealed a flexion of 70 degrees, extension of 10 degrees, and bilateral lateral flexion and rotations of 20 degrees each, all with objective evidence of pain. There were no additional losses of range of motion or additional pain on repetition. There were no findings of ankylosis. However, the examiner noted that the Veteran had experienced at least 2 weeks, but less than 4 weeks of incapacitating episodes during the previous 12 months. The examiner opined that the Veteran's occupational functioning was moderately impaired by his condition. The Veteran was provided with an additional VA examination in March 2017. The Veteran was diagnosed with lumbosacral strain. The examiner opined that the Veteran's prior diagnosis of intervertebral disc syndrome was unwarranted and not supported by the medical evidence of record. The previous 2015 VA examiner provided no supporting rationale for such diagnosis. The Veteran complained of a consistent ache in his back and pain when going from bent over to standing straight. No flare-ups were reported. Active range of motion testing revealed a flexion of 85 degrees and extension and bilateral lateral flexion and rotations of 30 degrees each, all without objective evidence of pain. Passive range of motion testing revealed a flexion of 90 degrees and extension and bilateral lateral flexion and rotations of 30 degrees each, all with objective evidence of pain. There were no additional losses of range of motion or additional pain on repetition or estimated for use over time. There were no findings of incapacitating episodes or ankylosis. The examiner opined that there were no effects of this condition on the Veteran's employment. The Veteran was provided with an additional VA examination in November 2018. The Veteran was diagnosed with lumbosacral strain and sacroiliac weakness. The Veteran complained of chronic stiffness, achiness, and lower back pain. The Veteran denied ever being incapacitated because of back pain. No flare-ups were reported. Active and passive range of motion testing revealed a flexion of 70 degrees, extension of 30 degrees, bilateral lateral flexion of 20 degrees each, and bilateral lateral rotations of 30 degrees each, all with objective evidence of pain. There were no additional losses of range of motion or additional pain on repetition or estimated for use over time. There were no findings of incapacitating episodes or ankylosis. The examiner opined that there were no effects of this condition on the Veteran's employment. The Veteran was provided with an additional VA examination in June 2020. The Veteran was diagnosed with lumbosacral strain. The examiner noted that the Veteran had been previously diagnosed to have intervertebral disc syndrome in the 2015 VA examination. However, there was no discussion of a rationale for that diagnosis or if it was meant to indicate that the Veteran now had it. The Veteran complained of pain with prolonged sitting and standing. Flare-ups were reported as resulting in increased pain. Active and passive range of motion testing revealed a flexion of 80 degrees and extension, bilateral lateral flexion and rotations of 30 degrees each, all with objective evidence of pain. There were no additional losses of range of motion or additional pain on repetition. For estimates of use over time and/or flare-ups, range of motion estimates revealed a flexion of 70 degrees and extension, bilateral lateral flexion and rotations of 20 degrees each There were no findings of incapacitating episodes or ankylosis. The examiner opined that there were effects on employment of interference with prolonged standing or sitting. After having reviewed the evidence of record, the Board finds that the Veteran's back disability does not warrant an evaluation in excess of 10 percent. The evidence of record shows that the Veteran's condition was manifested throughout the period of appeal with non-compensable loss of motion resulting in forward flexion between 70 degrees and 90 degrees, but no less and combined range of motion greater than 120 degrees. However, there appear to be complaints of painful motion, thereby warranting a minimum 10 percent evaluation. Therefore, during period of appeal, the Veteran's condition meets the requirements for a 10 percent evaluation due to painful motion. In order to warrant a higher evaluation, the Veteran would need to show the presence of worsened limitation of motion, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, incapacitating episodes, or ankylosis, none of which have been shown by the medical evidence of record at any time during the period of appeal. With respect to intervertebral disc syndrome and incapacitating episodes as may result from it, as indicated by the March 2017 VA examiner, the Veteran's treatment records and contemporaneous VA examinations do not demonstrate support for that diagnosis and impairment from it. In this regard, the 2015 VA examiner did not provide any indication as to how the diagnosis was derived and the 2020 VA examiner merely appeared to be transcribing the 2015 VA examiner's findings. It is further noted that in the 2018 VA examination, even the Veteran himself denied experiencing symptoms of intervertebral disc syndrome, to include incapacitating episodes. Accordingly, the Board finds that the medical evidence of record does not support the application of that part of the rating schedule to this appeal. Moreover, the record shows that Veteran has since been service connected for radiculopathy of the left and right lower extremity, secondary to his service connected low back disability, and assigned 10 percent disability evaluations for each extremity. The Veteran has not indicated dissatisfaction with those ratings. Thus, it appears the symptoms associated with the Veteran's back disability have been considered and addressed by VA. As to his lumbosacral strain, which is the subject of this appeal, no more than a 10 percent evaluation is warranted. M. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dodd, Ryan 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.