Citation Nr: 22008074 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 17-52 668 DATE: February 11, 2022 ORDER A rating of 40 percent and no higher is granted for lumbar strain. FINDING OF FACT At all times relevant to the period on appeal the Veteran's service-connected lumbar strain was manifested by forward flexion of the thoracolumbar spine functionally limited to 30 degrees or less; there were no incapacitating episodes of IVDS nor was there any ankylosis. CONCLUSION OF LAW The criteria for a 40 percent rating, and no higher, for the Veteran's service-connected lumbar strain have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1986 to April 1986. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) (hereinafter agency of original jurisdiction (AOJ)). This matter was previously before the Board in March 2019, at which time the issue was remanded for additional development. In an August 2020 rating decision, the AOJ awarded service connection for radiculopathy of the left lower extremity (femoral nerve), assigning a 10 percent initial disability rating, effective January 6, 2020; granted service connection for radiculopathy of the left lower extremity (sciatic nerve), assigning a 10 percent initial disability rating, effective January 6, 2020; granted service connection for radiculopathy of the right lower extremity (femoral nerve), assigning a 10 percent initial disability rating, effective January 6, 2020; and granted service connection for radiculopathy of the right lower extremity (sciatic nerve), assigning a 10 percent initial disability rating, effective January 6, 2020. The Veteran has not expressed any disagreement with these awards of service connection; they will not be addressed herein. Entitlement to an initial 40 percent rating, and no higher, for service-connected lumbar strain is granted. Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The Board has considered whether separate ratings for different periods of time are warranted based on the facts, which is a practice of assigning ratings that is referred to as "staging the ratings." Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran seeks entitlement to higher disability ratings for his service-connected lumbar strain. In the May 2016 Rating Decision on appeal, the AOJ granted entitlement to service connection for lumbar strain and assigned a 20 percent disability rating under diagnostic code (DC) 5237, effective September 8, 2009. The criteria for rating all disabilities of the spine are set forth in 38 C.F.R. § 4.71a, which provides that spine disabilities are to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine (General Formula) or under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under the IVDS Formula, a spine disability is rated based on the presence of incapacitating episodes, which are periods of acute signs and symptoms due to IVDS that require bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, IVDS Formula. The General Formula for rating a disability of the spine provides in pertinent part: 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, 10 percent evaluation 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 evaluation 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 is 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 evaluation 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 evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Formula. 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. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire lumbar 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. The CAVC has observed that ankylosis is an objective finding or symptom and not a diagnosis. Chavis v. McDonough, 34 Vet. App. 1 (2021). Notably, multiple definitions of "ankylosis" were discussed in Chavis including general medical dictionary definitions as follows: "[i]mmobility and consolidation of a joint due to disease, injury, or surgical procedure" (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 94 (33rd ed. 2019)), "[s]tiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint" (citing STEADMAN'S MEDICAL DICTIONARY 95 (28th ed. 2006)) and "[a] stiffening or immobilization of a joint as a result of injury, disease, or surgical intervention" (citing CHURCHILL'S ILLUSTRATED MEDICAL DICTIONARY 91 (1989). It noted that VA had previously defined ankylosis as "bony fixation" in older criteria and, in proposing the current regulatory terms decided to define the terms of favorable and unfavorable in Note (5) of the General Rating Formula. 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."). The Board notes that §§ 4.40 and 4.45 are for application for determining whether a claimant's disability picture represents the functional equivalent of ankylosis. See Chavis, 34 Vet. App. at 17-18. Here, after reviewing all of the clinical evidence and subjective complaints, the Board finds that the record is absent evidence of incapacitating episodes that require bed rest prescribed by a physician and treatment by a physician, and thus, the Veteran's low back disability must be evaluated under the General Rating Formula. The Board notes that during the pendency of this appeal, the schedule for rating musculoskeletal disabilities was amended, effective February 7, 2021. See 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). Where, as here, a diagnostic code is amended while a claim is pending, VA is required to consider both versions of the code and apply the version most favorable to the Veteran. In this case, the new rating criteria did not make amendments to DC 5237. Turning to the General Rating Formula, the Veteran's lumbosacral strain is currently rated 20 percent disabling under 38 C.F.R. § 4.71a DC 5237, effective September 8, 2009. After a review of the evidence of record, the Board finds that the signs and symptoms associated with the Veteran's lumbosacral strain best approximates forward flexion of the thoracolumbar spine limited during flare ups to 30 degrees or less. There is no ankylosis nor functional ankylosis. In this regard, the Veteran's treatment records note limited range of motion (ROM) and pain with movement. While examinations record forward flexion of the thoracolumbar spine that at times is in excess of 30 degrees, the Board has considered both the objective testing as well as the Veteran's consistent assertions as to functional limitations with flare-ups and with repetitive motion. See, e.g., October 2018 Veteran's statement. Thus, we conclude for the reasons that follow that he is functionally restricted to forward flexion of 30 degrees or less of the thoracolumbar spine. Range of motion has varied on objective testing throughout the appeal period. During a January 2006 musculoskeletal screening, ROM testing revealed forward flexion of the thoracolumbar spine from 0 to 45 degrees and extension from 0 to 15 degrees. Additionally, the Veteran's treatment records continue to note complaints and treatment of lower back pain, including physical therapy and medication. In January 2007, the Veteran was provided a VA spine examination, where ROM testing revealed forward flexion of the thoracolumbar spine from 0 to 40 degrees and extension from 0 to 15 degrees. Significantly, during a January 2009 VA spine examination, ROM testing revealed forward flexion of the thoracolumbar spine from 0 to 30 degrees, with pain from 20 to 30 degrees, and extension from 0 to 20 degrees. Further, no additional loss of ROM was found after repetitive movement or during flare-ups. The Veteran was provided an additional VA spine examination in February 2016. During the examination, the Veteran was diagnosed with lumbosacral strain and degenerative arthritis of the spine. Further, the Veteran reported constant low back pain, which is worsened by bending, lifting, standing, and walking. However, the Veteran denied flare-ups, but reported functional loss or impairment of the thoracolumbar spine. ROM testing revealed forward flexion of the thoracolumbar spine from 0 to 40 degrees and extension from 0 to 0 degrees. Pain was noted on movement, and non-movement. Also, the Veteran was found unable to bend and lift, and muscle spasms severe enough to result in an abnormal gait were noted. The examiner indicated that there was no evidence of ankylosis, muscle atrophy, or radiculopathy. In October 2018, the Veteran submitted an affidavit describing flare-ups twice a week, which causes the Veteran to rest and recuperate for at least two days with bed rest, a STIM machine, medication, and a traction machine. Further, the Veteran described difficulty with sleeping, standing, sitting, pushing, pulling, and bending due to lumbar pain. Additionally, the Veteran submitted physical therapy records, wherein the Veteran's ROM was reported as forward flexion of the thoracolumbar spine from 0 to 40 degrees. ŽSee December 2019 Medical Treatment Record. Following the March 2019 Board remand, the Veteran was provided an additional VA spine examination in January 2020. During the examination, the Veteran's diagnoses of lumbosacral strain and degenerative arthritis of the spine were confirmed. Further, the Veteran reported constant low back pain, and weekly flare-ups, which last 3 to 4 days. Also, the Veteran noted functional loss or impairment of the thoracolumbar spine, which impacts his ability to stand for prolonged periods of time, walk long distances, and lift heavy objects. ROM testing revealed forward flexion of the thoracolumbar spine from 0 to 40 degrees and extension from 0 to 0 degrees. Pain was noted on movement, and non-movement. Also, the Veteran was found unable to bend and lift, and muscle spasms severe enough to result in an abnormal gait were noted. The Veteran was able to perform repetitive-use-testing with at least three repetitions and the examiner indicated that there was no additional limitation of range of motion after three repetitions. With regard to repeated use over time, the examiner indicated that the Veteran was not being examined immediately after repetitive use over time, but noted and that pain, weakness, fatigability, or incoordination does significantly limit functional ability with repeated use over a period of time. And noted additional loss of ROM of forward flexion from 0 to 35 degrees after repetitive use over time and during flare-ups. The examiner indicated that there was no evidence of ankylosis, muscle atrophy, or IVDS of the thoracolumbar spine. The examiner indicated that the Veteran experiences muscle spasms and guarding resulting in abnormal gait or abnormal spine contour. With regard to Correia, the examiner indicated that passive range of motion testing was not performed as it was not medically appropriate because it is not possible to do passive range of motion of the lumbar spine and non-weight bearing testing cannot be performed because the back is always weight bearing. Based on the findings of the VA examinations, as well as the information contained in the Veteran's treatments records and in consideration of his consistent and candid statements as to limitations under the ordinary conditions of life, the Board finds that a 40 percent rating is the appropriate disability rating for the Veteran's service-connected back condition. Forward flexion of the thoracolumbar spine is functionally limited to 30 degrees or less. There is no ankylosis of the thoracolumbar spine however, thus there is no basis for a higher rating. The Veteran credibly reports functional limitations in activities such as walking, bending, and lifting due to increased pain which results in additional motion loss that the Board finds makes the evidence for and against a 40 percent rating based on limited flexion to be evenly balanced. However, even with consideration of functional impairment on use or with repetitive use under the principles of 38 C.F.R. §§ 4.40 and 4.45, the Board finds that the Veteran's motion loss does not more nearly approximate functional ankylosis. As such, the Veteran is entitled to a disability rating of 40 percent, and no higher. N. RIPPEL Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Patrick C. Brady, 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.