Citation Nr: 22013367 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 17-60 344 DATE: March 9, 2022 ORDER Entitlement to a rating in excess of 40 percent for lumbar strain is denied. FINDING OF FACT At no point during the appeal period did the Veteran's lumbar strain disability result in ankylosis or the functional limitation equivalence of ankylosis; or intervertebral disc syndrome (IVDS) with incapacitating episodes. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 40 percent for lumbar strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1986 until his honorable retirement in June 2007. The Veteran is in receipt of the Combat Action Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record. In August 2021 the Board remanded the issues of entitlement to service connection for sleep apnea and entitlement to a disability rating in excess of 10 percent for lumbar strain. In December 2021, the RO granted service connection for sleep apnea and granted an evaluation of 40 percent for lumbar strain, effective June 2, 2014. 1. Entitlement to a rating in excess of 40 percent for lumbar strain The Veteran is in receipt of a 40 percent rating for his service-connected lumbar strain disability from June 2, 2014, which is the date of his claim for an increased rating. The Veteran generally contends that he is entitled to an increased rating because his lumbar strain disability and its associated symptoms are more severe than contemplated by the currently assigned rating. Disabilities of the spine are rated under a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) (encompassing Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes). The General Rating Formula stipulates, in pertinent part, that a 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted where there is unfavorable ankylosis of the entire spine. These criteria are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved. 38 C.F.R. § 4.71a. For VA compensation purposes, unfavorable ankylosis is a condition in which 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 (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula, Note (5). The Veteran may alternatively be rated under the Formula for Rating IVDS Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Formula for Rating IVDS Based on Incapacitating Episodes provides, in pertinent part, that a maximum 60 percent rating is assigned with incapacitating episodes having a total duration of at least six weeks during the past 12 months. See id.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, Note (1). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, deformity, or atrophy of disuse. The diagnostic codes pertaining to range of motion do not subsume sections 4.40 and 4.45, and the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during periods of flare-up. See DeLuca, 8 Vet. App. at 206; see also Johnson v. Brown, 9 Vet. App. 7 (1996). In determining if a higher rating is warranted on this basis, it is important to note that pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Similarly, painful motion alone does not constitute limited motion for the purposes of rating under the diagnostic codes pertaining to limitation of motion. Id. However, pain may result in functional loss if it limits the ability to perform normal movements of the body with normal excursion, strength, speed, coordination, or endurance, as provided in 38 C.F.R. § 4.40. Id. at 38. Functional loss caused by pain must be rated at the same level as if that functional loss were caused by some other factor, for example, deformity, adhesion, atrophy, tendon tie-up, see 38 C.F.R. §§ 4.40, 4.45, that actually limited motion. Id. at 37. In a recent decision, the United States Court of Appeals for Veterans' Claims (Court) noted that when evaluating a disability under VA's General Rating Formula, the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis. Chavis v. McDonough, 34 Vet. App. 1 (2021). Therefore, ankylosis can be shown via functional loss consistent with that contemplated by ankylosis. See 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). After a careful review of the objective medical evidence of record, the Board finds that a rating in excess of 40 percent for the Veteran's lumbar strain disability is not warranted at any time during the period on appeal. Here, the Veteran testified at his Board hearing that he is continuously sore with an achy feeling in his lower back. The Veteran indicated that he has an abnormal gait. The Veteran stated that when he walks, he sometimes feels like sharp needles are shooting through the bottom of his back. The Veteran expressed that he cannot perform most tasks such as mowing the lawn. The Veteran indicated that the pain or discomfort that he experiences limits his mobility. The Veteran indicated that he could walk but that he cannot walk for long periods of time because the irritation in his lower back. The Veteran reported radiating pain that shoots down his legs. The Veteran was afforded a VA examination in April 2015. The Veteran reported flare-ups. The Veteran indicated that he has two to three flares monthly with no known cause at the time. The Veteran indicated that his flares happen when he uses his lower back muscles. The Veteran noted that the flares last three to four days. The Veteran reported having functional loss or impairment. The Veteran noted that he is unable to bend, lift, stand, walk, and drive for extended periods of time related to pain. Initial range of motion revealed forward flexion to 75 degrees and extension to 25 degrees. The examiner noted that range of motion contributes to functional loss as the Veteran is unable to bend to pick up things without increased pain. The examiner indicated that pain was noted on examination and causes functional loss. There was evidence of pain with weight bearing. The examiner noted that the Veteran was able to perform repetitive use testing, however, there was no additional loss of function or range of motion after three repetitions. The examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over a period of time or during a flare-up. Muscle strength was normal with no muscle atrophy. The examiner indicated that the Veteran does not have radicular pain or signs of radiculopathy. There was no ankylosis of the spine. The examiner noted that the Veteran does not have any other neurologic abnormalities or findings related to a thoracolumbar spine condition (such as bowel or bladder problems/pathologic reflexes.) The examiner indicated that the Veteran does not have IVDS. On a June 2018 VA treatment note, the Veteran reported constant lower back pain, sharp, with associated stiffness. The Veteran stated that his lower back pain radiates down both legs to the feet with associated numbness. The Veteran was afforded a VA examination in December 2021. The Veteran reported insidious lower back pain that radiates down his bilateral legs. The Veteran did not report flare-ups. The Veteran reported having functional loss or impairment. The Veteran noted that he has difficulty with bending and prolonged sitting due to back pain. Initial active range of motion revealed forward flexion to 25 degrees and extension to 10 degrees. The examiner was unable to perform passive range of motion and it is medically contraindicated as it can result in injury. The examiner noted that there was evidence of pain on active motion that causes functional loss. The examiner noted that the Veteran was able to perform repetitive use testing, however, there was no additional loss of function or range of motion after three repetitions. The examiner indicated that pain significantly limits functional ability with repeated use over a period of time. Forward flexion would be limited to 20 degrees and extension to 5 degrees. The examiner noted that the procured evidence does not suggest that pain, weakness, fatigability, or incoordination significantly limit functional ability with flare-ups. Muscle strength was reported as normal with no muscle atrophy. Straight leg raising test was negative, bilaterally. The examiner indicated that the Veteran does not have radicular pain or signs of radiculopathy. There was no ankylosis of the spine. The examiner noted that the Veteran does not have any other neurologic abnormalities or findings related to a thoracolumbar spine condition (such as bowel or bladder problems/pathologic reflexes.) The examiner indicated that the Veteran does not have IVDS. As noted above, to qualify for entitlement to the next higher rating of 50 percent, the Veteran must demonstrate unfavorable ankylosis of the entire thoracolumbar spine. During the period on appeal, the Veteran has been afforded two VA examinations of his lumbar spine: in April 2015 and December 2021. Significantly, the Veteran was not found to have ankylosis of the spine at any of these VA examinations. Moreover, range of motion testing performed on the Veteran's thoracolumbar spine during the relevant period does not indicate that, at any time, the Veteran's lumbar spine condition more closely approximated disability indicative of ankylosis of the spine. In this regard, on regular range of motion testing, the Veteran was found to have forward flexion limited to, at most, 25 degrees (See December 2021 VA examination report), and extension limited to, at most, 10 degrees (See December 2021 VA examination report). With regard to additional range of motion loss following repetitive use over time, the VA examiner who performed the December 2021 VA examination estimated that during these periods the Veteran's forward flexion would be limited to 20 degrees, and extension would be limited to 5 degrees. Thus, even when considering the Veteran's disability picture when his lumbar strain disability is at its most severe, he would still be able to achieve some degree of forward flexion and extension of the spine. Notably, the Veteran has never alleged that during his most severe lumbar spine pain, he is rendered completely unable to move his spine or that he suffered from such restricted range of motion that it may be considered the functional equivalent of ankylosis. See Chavis v. McDonough, 34 Vet. App. 1 (2021). As such, the Board finds that there is no evidence of ankylosis, or fixation of a spinal segment in a neutral position (zero degrees), at any time. In light of the above, the Board does not find that the Veteran's lumbar strain disability manifests by unfavorable ankylosis of the entire thoracolumbar spine. In making this finding, the Board notes that unfavorable ankylosis, as defined 38 C.F.R. § 4.71a, requires ankylosis of the thoracolumbar spine that results in at least one 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. See 38 C.F.R. § 4.71a, General Rating Formula, Note (5). Because there is no evidence to support a finding that the Veteran has ankylosis of the spine, there is no need to further consider any of the above complications. With respect to the possibility of assigning a higher rating under 38 C.F.R. § 4.40 and § 4.45, the Board notes that the criteria for a 50 percent rating under the General Rating Formula are not predicated on limitation of range of motion. Therefore, the Board need not consider whether the Veteran is entitled to a higher rating due to additional functional loss under §§ 4.40 and 4.45. See Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnson v. Brown, 9 Vet. App. 7, 11 (1996). In making this finding, the Board acknowledges that in August 2021, the Board remanded for a VA examination in which the examiner was required to estimate the additional functional loss or limitation of range of motion the Veteran experiences in his lumbar spine during a flare up. However, since then, the Veteran's disability rating has been increased to 40 percent for the entire period on appeal. Therefore, the Board finds that the Veteran is not prejudiced by the inadequate April 2015 VA examination, as entitlement to the next higher 50 percent rating is not predicated on limitation of range of motion. In addition, the Veteran denied flare-ups on his most recent VA examination. The Board has also considered whether the Veteran is eligible for a higher rating under Diagnostic Code 5243 for IVDS. In this regard, the Board notes that the Veteran has not been diagnosed with IVDS. Moreover, review of the medical evidence of record does not show that the Veteran has suffered incapacitating episodes requiring physician-prescribed bed rest at any time during the period on appeal. A 60 percent rating under Diagnostic Code 5243 requires incapacitating episodes having a total duration of at least six weeks during the past 12 months. Such has not been shown by the medical evidence of record nor alleged by the Veteran; therefore, a higher rating under Diagnostic Code 5243 for IVDS is not warranted. The Board has also considered the Veteran's report of shooting pain down his bilateral legs and whether such reports warrant a separate disability rating for radiculopathy of the bilateral lower extremity. However, here, there is no objective evidence that the Veteran's back disability results in radiculopathy to his lower extremities. Thus, as no objective evidence of record supports the finding that the Veteran's back disability results in radiculopathy in his bilateral lower extremity, the Board finds the most persuasive evidence is against the finding that the Veteran's back disability results in radiculopathy to the bilateral lower extremity and a separate disability rating for bilateral lower extremity radiculopathy pursuant to 38 C.F.R. § 4.71a, note 1- which requires objective neurologic abnormalities, is not warranted. The Board acknowledges that the Veteran sincerely believes that his disability is more severe than the currently assigned rating reflects. The Veteran is competent to testify to the presence of observable symptoms, such as experiencing an increased level of pain. See Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not competent to report that his lumbar strain disability is of sufficient severity to warrant a higher rating under the rating schedule, as such an opinion requires specialized medical expertise which falls outside the realm of the common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board sympathizes with the Veteran that his lumbar strain disability significantly impacts his quality of life. However, it must rely on the medical evidence of record to assign the appropriate disability rating, and therefore, accords the objective medical findings greater weight than subjective complaints of increased symptomatology. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether a rating in excess of 40 percent for the Veteran's lumbar strain is warranted. Rather, the evidence persuasively weighs against an increase in excess of 40 percent. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. 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.