Citation Nr: 22012507 Decision Date: 03/04/22 Archive Date: 03/04/22 DOCKET NO. 07-01 774 DATE: March 4, 2022 ORDER Entitlement to an initial rating of 20 percent, but no higher, for mechanical back syndrome is granted. REMANDED Entitlement to a separate rating(s) for neuropathy of the right lower extremity associated with the lumbar spine disability is remanded. FINDING OF FACT The Veteran's lumbar spine disability resulted in muscle spasm severe enough to cause abnormal gait, but flexion was greater than 30 degrees: and, the evidence fails to establish the presence of intervertebral disc syndrome (IVDS). CONCLUSION OF LAW The criteria for a rating in excess of 20 percent, but no higher, for mechanical back syndrome have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1999 to September 2003. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board remanded this issue in October 2010, February 2012, November 2012, May 2013, and February 2018 to the RO for additional development. There has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141(1999). Additional treatment records were associated with the claims file after certification and transfer to the Board. The Veteran has not submitted a waiver of initial consideration by the agency of original jurisdiction (AOJ) with respect to these documents. However, as the received evidence essentially duplicative of evidence previously of record and/or is not relevant to the disability on appeal, a waiver was not needed. See 38 C.F.R. § 20.1305. Increase Rating The General Rating Formula for Diseases and Injuries of the Spine provides that 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 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 rating is warranted for forward flexion of the thoracolumbar spine 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 rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. A back/spine disability can also be rated as IVDS based on incapacitating episodes. Under those criteria, found at DC 5237, a ten percent evaluation requires incapacitating episodes having a total duration of at least one week, but less than 2 weeks during the past 12 months, and 20 percent evaluating requires incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks during the past 12 months. Id. DC 5243. A 40 percent rating is warranted for incapacitating episodes having a total duration of less than six weeks, but more than four weeks and a 60 percent rating is warranted if incapacitating episodes have a total duration of at least six weeks during the past 12 months. There is no corresponding note allowing for the separate evaluation of any associated neurologic abnormalities. 38 C.F.R. § 4.71a. 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 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. 38 C.F.R. § 4.71a, Plate V, General Rating Formula for Diseases and Injuries of the Spine, Note (2). 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 (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). During the pendency of the appeal, the rating criteria for evaluating musculo-skeletal disabilities under 38 C.F.R. § 4.71A were amended effective February 7, 2021. 83 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes" to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's relevant claims under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021, applying the criteria that is more favorable to the Veteran. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, DC 5237 was not substantively changed. Changes to DC 5243, which pertains to intervertebral disc syndrome (IVDS), arguably creates a more restrictive application as it now directs to assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root, and to otherwise assign DC 5242 for all other disc diagnoses. However, it is again noted that the General Rating Formula for Diseases and Injuries of the Spine and the Formula for Rating IVDS Based on Incapacitating Episodes did not change. 1. Entitlement to an initial rating in excess of 10 percent for mechanical back syndrome. The Veteran seeks a higher rating for his service-connected spine disability which is currently rated 10 percent pursuant to 38 C.F.R. § 4.71a, DC 5237. Following consideration of the record, a 20 percent rating, but no higher, is warranted for the entire period on appeal. As this is a claim for initial increased rating, the period on appeal is from the date of service connection, September 2, 2003, forward. On February 2005 VA examination, the Veteran reported non-radiating left lower back pain. Examination was negative for bowel or bladder symptomatology and incapacitating or acute episodes. He was noted as able to conduct activities of daily living and did not use medical aids. There was no discussion as to muscle spasms. Physical examination revealed good heel and toe rising. Range of motion (ROM) was to 85 degrees flexion, 20 degrees right and left bending, 15 degrees of extension, and 5 degrees of right and left rotation. There were no reflex, sensory or motor defects and he had a negative straight leg raising test with no weaknesses in the lower extremity. Repeated motion did not cause an increase in pain or decrease in ROM. Diagnosis was mechanical back syndrome. On April 2012 VA examination, flare ups were denied, and diagnosis was lumbar strain. ROM was forward flexion to 90 with pain beginning at 90. Extension and left and right lateral flexion and rotation were to 30 or greater, with no objective evidence of painful motion. There was no additional loss of ROM following repetitive testing. There was no functional loss and/or functional impairment of the spine or localized tenderness or pain to palpation for joints and/or soft tissue. The Veteran was determined not to have guarding or muscle spasm of the spine at the time of examination. Muscle strength testing was normal with no atrophy. Reflex and sensory exam were normal and straight leg raising test was negative. The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy or any other neurologic abnormalities. There was no IVDS, incapacitating episodes, or use of assistive devices. Functional impairment was not equivalent to that well served by amputation. Functional impact was "it would be difficult for vet to perform jobs requiring heavy lifting above 20 lbs." On February 2017 VA examination, the Veteran reported intermittent low back pain, affecting his muscles. Pain was not always present, but he suffered from intermittent flares, treated with ibuprofen. Flares of pain last for several days after strenuous activities. Functional loss or functional impairment were noted as the Veteran having to be careful with heavy bending, lifting, and straining. ROM was all normal. Pain was noted on extension to cause functional loss. There was no evidence of localized tenderness or pain on palpation of the joint or associated soft tissue or evidence of pain on weight bearing. Pain, weakness, fatigability, or incoordination were noted to significantly limit functional ability with repeated use and with flare ups. Pain caused functional loss without further loss of ROM. The examination was medically consistent with the Veteran's described functional loss during repeated use over time and with flare ups. Guarding and spasm and localized tenderness were not present on examination. An additional factor contributing to disability was disturbance of locomotion. Muscle strength testing was normal with no atrophy. Reflex and sensory exams were normal with a negative straight leg raising test and no radiculopathy. Examination was negative for ankylosis or other neurologic abnormalities. The Veteran did not have IVDS or use assistive devices. His disability impairment was not equivalent to that requiring amputation. The examiner opined that the discrepancy between ROM testing results in 2005 and 2012 was due to the Veteran likely experiencing a flare in 2005. As to the level of pain present on 2017 examination, the examiner opined that pain was minimal with extension and not debilitating with normal ROM and strength. As rationale, the examiner noted that the examination was "almost completely normal, [with] good ROM, [and] only mild pain with extension." The examiner found the Veteran likely would experience additional pain and loss of ROM during a flare. Pain was present only during weight bearing with associated normal ROM. Passive and non-weight bearing ROM testing could not be performed without the use of specialized equipment and without the risk to the Veteran. On an October 2019 VA addendum opinion, an examiner explained that the 2017 findings of no muscle spasms were in relation to the lack of objective evidence of spasms at the time of examination. The examiner then explained that a history of muscle pain was noted, and that muscle spasm in the back, when active, would more likely than not alter the posture and gait of the Veteran. February 2021 VA examination. At the time of examination, the Veteran reported back pain as severe and treated with naproxen. He reported severe pain while sitting and walking. He reported his symptoms made his "desk job" difficult and noted recurrent back pain post exertion. He reported daily severe flares, while sitting and walking, and them being alleviated by lying in bed. Functional limitation associated with flares, per the Veteran's report, was limited ROM. On examination, ROM was full in active and passive motion, with pain in forward flexion and weight-bearing. No additional loss of ROM was noted with repetition. Procured evidence did not suggest pain, fatigability, weakness, lack of endurance, or incoordination which significantly limited functional ability with repeated use over time or with flare. Muscle strength, sensory, and reflex exams were normal. There was no evidence of IVDS, ankylosis or of neurologic abnormalities, including radiculopathy. The use of assistive devices was not reported. Functional impairment was listed as Veteran "may require a stretch break post aggravation." In A February 2021 addendum, the examiner clarified that flares would likely result in no limitation of ROM as, examination was negative for decreased ROM, localized tenderness, guarding or muscle spasm. Treatment records note the use of muscle relaxers and reports of muscle spasm. Records document pain, but do not indicate radiating back pain. Treatment records are negative for ROM testing or symptoms greater than those noted on examination. Upon consideration of the record, the Board finds that a 20 percent rating, but no higher, is warranted. From the outset, the Board notes that the claims file to include lay, examination, and treatment records is negative for an indication that the Veteran suffers from IVDS resulting in incapacitating episodes. The assignment of a higher rating under the IVDS diagnostic code would be inappropriate. However, records indicate the Veteran has essentially experienced muscle spasms of the thoracolumbar are throughout the appeal. Additionally, the 2019 VA examiner opined that the Veteran's reported flares resulted in muscles spasms which, when active, more likely than not resulted in altered gait and posture. Such a finding warrants a 20 percent rating. However, the persuasive evidence of record is against the assignment of a rating in excess of 20 percent. The Veteran's forward flexion consistently exceeded 30 degrees, even considering his most limited ROM of 85 degrees which was obtained on 2005 VA examination during a flare up. Ankylosis of the spine or symptoms equivalent to ankylosis have likewise not been shown. The Board has considered the Veteran's reports of pain and function loss in his spine. The fact that he may have had pain in all range of motion testing does not warrant a higher evaluation. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The examinations of record considered his complaints of pain and functional loss when measuring and assessing his ROM. Thus, even after considering his complaints of pain and pain on motion, the evidence shows limitation of motion of the spine more closely approximates the evaluation currently assigned rather than the higher evaluation sought by the Veteran. The next higher schedular disability rating is not warranted. See 38 C.F.R. § 4.71a. The Court has established that flare-ups must be considered. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Guidance on how to evaluate flare-ups has not been particularly clear. However, the Board finds overall wisdom in Mitchell. 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 there is a regulation addressing stabilization of ratings, the flare-up 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. Consideration has been given to the flares noted above. As discussed by the 2017 VA examiner the Veteran's 2005 examination was conducted during a flare. Even during the flare, the Veteran's ROM well exceeded flexion necessary to receive a 40 percent rating. Such would not warrant a higher evaluation. Additionally, the Veteran's general reported flare-ups are not shown to additionally limit function in a quantifiable way and are not of such length or duration that a staged rating would not violate the rule regarding stabilization of ratings. Moreover, the contemporaneous treatment records contain little, if any, findings pertaining to flare-ups much less information regarding the Veteran's functional ability during a flare-up or after repeated use over time. Finally, as stated, flare ups were not estimated to result in limitation of ROM at the time of 2021 examination. In sum, 38 C.F.R. § 4.1 provides that the degrees of disability specified 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. Here, reports of exacerbation or flare-ups are not quantifiable and not of sufficient duration to warrant a change in evaluation without violating the spirit of Mitchell, the spirit of 38 C.F.R. § 4.1 and the rule regarding stabilization of ratings. As for objective neurologic abnormalities, the evidence does not demonstrate any additional objective neurologic abnormalities associated with the Veteran's back disability during the pendency of the appeal. Bowel and bladder symptoms have not been identified. To the extent that the Veteran has diagnosed right lower extremity peripheral neuropathy, this condition is addressed in the Remand portion of this decision. Accordingly, the 20 percent rating adequately represents any impairment attributable to the lumbar disability. For all the foregoing reasons, the persuasive evidence is against a rating in excess of 20 percent. REASONS FOR REMAND 2. Entitlement to a rating for neuropathy of the right lower extremity. The General Formula for Diseases and Injuries of the Spine also, in pertinent part, provides for evaluation of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a. The evidence is unclear as to whether the Veteran has neuropathy of his right lower extremity associated with the lumbar spine disability. Although the April 2021 VA peripheral nerve examination and private treatment records confirm diagnosis, etiology is not clear. In that regard, as indicated above, VA spine examinations are negative for the condition. Additionally, the 2021 nerve examiner opined the condition was not related to his service-connected knee. Given the uncertainty, the Board finds that the Veteran should be afforded a neurological examination to assist in determining the nature and severity of any diagnosed neuropathy associated with the service-connected lumbar spine disability. The matters are REMANDED for the following action: Afford the Veteran an appropriate VA examination to assist in determining the nature and severity of any lumbar spine radiculopathy. For each neurological manifestation diagnosed, the examiner must specifically identify the nerve that is involved and indicate whether there is complete paralysis. If incomplete paralysis is found, the examiner should indicate the severity of the symptoms. (a.) The examiner must address the VA spine examinations being negative for neurologic symptomatology in contrast to April 2021 VA peripheral examination and private treatment records noting diagnosis of neuropathy of the right lower extremity. (b.) A complete rationale for all opinions must be provided. The Veteran's lay statements must be considered as well as the pertinent evidence of record. (c.) If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and he/she must provide the reasons why an opinion would require speculation. The examiner must indicate whether there is any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. L. Burroughs, 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.