Citation Nr: 22012249 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 13-13 645 DATE: March 3, 2022 ORDER Prior to December 16, 2020, an initial 40 percent rating for a lumbar sprain with degenerative changes is granted. From December 16, 2020, an initial rating higher than 20 percent for a lumbar sprain with degenerative changes is denied. FINDINGS OF FACT 1. Prior to December 16, 2020, the Veteran's lumbar spine impairment approximated 30 degrees of forward flexion during repetitive use and flare-ups. 2. From December 16, 2020, the Veteran's lumbar spine disability was not manifested by ankylosis or forward flexion limited to 30 degrees or less. CONCLUSIONS OF LAW 1. Prior to December 16, 2020, the criteria for an initial 40 percent rating for a lumbar sprain with degenerative changes have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5237. 2. From December 16, 2020, the criteria for an initial rating higher than 20 percent for a lumbar sprain with degenerative changes have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, DC 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Marine Corps from April 2007 to January 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision. It was previously remanded by the Board in September 2017 for additional development. In February 2019, the Board denied the appeal. The Veteran appealed that denial to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand (JMR), the Court remanded the matter back to the Board in January 2020. The Board then remanded the matter again for additional development in September 2020. Initial rating for lumbar sprain with degenerative changes The Veteran's lumbar spine disability is rated under 38 C.F.R. § 4.71a, DC 5237, which is part of the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). He is currently assigned a 10 percent rating prior to July 1, 2014, and a 20 percent rating thereafter. Under the General Rating Formula, 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. 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. Unfavorable ankylosis is defined as "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." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. [Include any other relevant Note(s).] 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). A. Rating prior to December 16, 2020 As noted above, the Board previously denied the Veteran's appeal in February 2019. The Court remanded the matter back to the Board, citing its reliance on VA examinations from April 2011, July 2014, and January 2018 which did not comply with Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Correia, the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp, the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. In September 2020, the Board remanded the matter to obtain a new VA examination. It instructed that examiner to comment on whether range of motion measurements for passive motion, weight-bearing, nonweight-bearing, and flare-ups could be estimated from the prior VA examinations. A new VA examination was obtained in December 2020. However, the examiner did not provide the requested information regarding the prior examinations. As a result, for the period prior to December 16, 2020, the evidence does not adequately address the Veteran's lumbar spine range of motion. Notably, during the July 2014 VA examination, the onset of pain was documented at 40 degrees of forward flexion, and the Veteran reported that flare-ups decreased his ability to stand, walk, lift, or run properly. In January 2018, the Veteran had 70 degrees of forward flexion, and the examiner noted that pain and lack of endurance significantly limited functional ability with repetitive use over time and during flare-ups. The Board will therefore resolve any doubts in the Veteran's favor and find that lumbar spine impairment approximated 30 degrees of forward flexion during repetitive use and flare-ups. The assignment of the 40 percent rating is the highest available under the General Rating Formula based on limited range of motion. This vitiates any due process error resulting from the inadequate VA examinations. A higher 50 percent rating is not warranted. Even when considering the functional limitation during flare-ups or repetitive use over time, the Veteran's symptoms do not more nearly approximate the entire spine fixed in flexion or extension and one of the additional symptoms set forth in Note 5. Indeed, there is medical evidence or lay assertion from the Veteran suggestive of 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. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS as detailed by the July 2014 and January 2018 VA examiners. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Regarding associated neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. The VA examinations of record specifically indicated that no bowel, bladder, or lower extremity neurological impairment was present. B. Rating from December 16, 2020 As of December 16, 2020, a rating higher than 20 percent is not warranted. The VA examination conducted on that date documented 50 degrees of forward flexion. This was during a flare-up of the Veteran's disability. The examiner further noted that forward flexion would be 40 degrees with repetitive use over time. In making these findings, the examiner noted the presence of pain with both weight-bearing and nonweight-bearing. The examiner also noted that passive range of motion testing was not performed and would not be medically appropriate. There was no ankylosis present. Forward flexion limited to 50 degrees during flare-ups, without the presence of ankylosis, does not satisfy the above criteria for a 40 percent rating. Moreover, the examiner noted that no bowel, bladder, or lower extremity neurological impairment was present, nor was there any IVDS. Therefore, a rating higher than 20 percent is not warranted during this period. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shamil Patel, 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.