Citation Nr: 22013497 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 17-36 948 DATE: March 9, 2022 ORDER Entitlement to an evaluation in excess of 10 percent for a lumbar disability is denied. FINDING OF FACT The Veteran's lumbar disability is manifest by combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; forward flexion of the lumbar spine greater than 60 degrees but not greater than 85 degrees; muscle spasm not resulting in abnormal gait or abnormal spine contour; and painful motion. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for a lumbar disability 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 July 1973 to March 1975 in the U.S. Army. This matter comes before the Board of Veterans' Appeals (Board) from a June 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claims were most recently remanded by the Board in a September 2021 decision. The Board finds that the RO has substantially complied with the September 2021 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to an evaluation in excess of 10 percent for a lumbar disability The Veteran contends that he is entitled to a 30 percent rating for his lumbar spasms. The Board notes that there is not a schedular 30 percent rating for a lumbar spine disability. The Veteran's lumbar disability, originally claimed as lumbar spasms, is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, 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. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the 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. 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."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), 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." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), 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. The Veteran was afforded a VA examination in March 2016. The Veteran was noted to have a diagnosis of lumbar spasms since August 1974. The Veteran reported he has flare-ups that are worse with standing and walking. The Veteran reported that he can walk to his trashcan and back and has pain going up and down the stairs. On initial range of motion testing, the Veteran had forward flexion of 90 degrees, extension of 20 degrees, and full bilateral lateral flexion and rotation. The examiner noted pain but indicated it did not cause functional loss. The examiner also noted mild localized tenderness or pain in the paravertebral musculature. There was no additional loss of function or ROM after 3 repetitions. The examiner indicated that he was unable to say without speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability over time because they could not be estimated. The examiner also indicated they could not provide an estimated functional limit during flare-ups without mere speculation. The examiner noted muscle spasm and localized tenderness not resulting in abnormal gait or abnormal spinal contour. The Veteran had full 5/5 muscle strength, no muscle atrophy, normal 2+ reflexes, and normal sensation. The straight leg test was negative bilaterally and there was no radiculopathy, ankylosis, or IVDS noted. The Veteran underwent another VA examination for his lumbar spine disability in October 2017. The examiner noted diagnoses of muscle spasm and lumbosacral spondylosis. The Veteran reported that he always has pain to variable degrees of severity. The Veteran reported using a TENS unit periodically and takes naproxen as needed. The Veteran also reported he can no longer play basketball, but he was vague on what "a long time" meant in his context. The Veteran reported that he walks and rides a bicycle 3-4 times every two weeks. The examiner noted the Veteran did not answer questions when asked. On initial range of motion testing, the Veteran had full forward flexion, 15 degrees of extension, 25 degrees of right lateral flexion, 15 degrees of left lateral flexion, and full bilateral lateral rotation. Pain was noted on forward flexion. The Veteran was able to perform repetitive use testing with no additional functional loss. The examiner declined to provide estimates of pain, weakness, fatigability or incoordination with repeated use over time or during a flare-up as he could not do so without mere speculation. The examiner noted no guarding or muscle spasm, but did note tightness of the lumbar paraspinous muscles, but no definite muscle spasm. The examiner also noted slight straightness of normal lumbar curvature most likely due to muscle tightness. The Veteran's muscle strength, sensory, reflex, and SLR examinations were unchanged except 1+ hypoactive reflexes in the bilateral ankles. The examiner noted to ankylosis or radiculopathy. Examiner also indicated that the Veteran's gait appeared normal and without pain, and that the Veteran was able to perform heel walk, toe walk, and toe-heel walk without pain or difficulty. The Veteran received another VA examination in April 2020 after reporting worsening. The examiner indicated there was no evidence of lower lumbar muscle spasm during the Veteran's time in service. The examiner estimated that the Veteran's flare-ups cause pain of 10/10 severity for 2-3 hours that do not cause significantly reduced range of motion about once per week based on vague history. Veteran reported he cannot run anymore due to his age. On initial range of motion examination, Veteran had forward flexion of 65 degrees, extension to 10 degrees, bilateral lateral flexion to 20 degrees, right lateral flexion to 25 degrees, and left lateral flexion to 20 degrees. The examiner noted no objective evidence of pain or localized tenderness on palpation. The examiner indicated no additional functional loss after 3 repetitions. The examiner also indicated there would be no additional functional loss due to repeated use over time or during flare-ups. The examiner indicated the Veteran did not have muscle spasms. The exam revealed no tightness of lumbar paraspinous muscles but did show slight straightening of normal lumbar curvature. The Veteran had full muscle strength, reduced reflexes, normal sensation, and negative SLR testing. The examiner noted no ankylosis or radiculopathy. The examiner indicated there was no objective evidence of tenderness anywhere. The examiner noted arthritis was documented. Most recently, in November 2021, the Veteran underwent another VA examination. The examiner noted no medical treatment for a lumbar disability in the past 2 years. The examiner noted diagnoses of spinal stenosis, degenerative arthritis, spondylolisthesis, lumbar spasms, and lumbar and thoracic segmental dysfunction. Veteran reported there are episodes where he can't get up because of back pain. The Veteran also reported neither physical therapy nor chiropractor provided a permanent fix. The examiner indicated the Veteran did not report flare-ups. The examiner indicated the Veteran would have difficulty with bending, getting dishes from under counters, difficulty with prolonged walking or standing, stairs, standing upright after bending, and doing household chores. On initial range of motion testing, the Veteran had flexion to 85 degrees, extension to 15 degrees, right lateral flexion to 30 degrees, left lateral flexion to 25 degrees, and bilateral lateral rotation to 25 degrees. The examiner performed passive ROM testing, which was the same as active ROM. The examiner indicated no evidence of pain, crepitus, or localized tenderness. The examiner indicated there was no additional functional loss after 3 repetitions. The examiner opined that the Veteran would have forward flexion to 80 degrees, extension to 10 degrees, right lateral flexion to 25 degrees, left lateral flexion to 20 degrees, and bilateral lateral rotation to 20 degrees after repeated use over time. The examiner indicated there would not be additional functional loss during a flare-up. The examiner noted there was muscle spasm and guarding not resulting in abnormal gait or abnormal spinal contour. The examiner noted no additional factors contributing to disability. The Veteran had full 5/5 muscle strength, normal reflexes, normal sensation, negative SLR testing, and no radiculopathy or ankylosis. The examiner indicated the Veteran does not have IVDS. The Board finds that the evidence of record persuasively weighs against a rating in excess of 10 percent for his lumbar disability. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain with walking, difficulty standing for a long time, inability to run, difficulty getting out of bed, and inability to pick up his grandchildren. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that flare-ups occur weekly lasting a few hours resulting in 10/10 pain but no additional functional loss would not result in limitation of motion more nearly approximating 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. Additionally, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. None of the examinations have indicated the Veteran had an abnormal gait or more than slightly straightened spinal contour. 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 and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. No examiner has indicated the Veteran has IVDS. Regarding 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. For the foregoing reasons, the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 10 percent for a lumbar disability. As the evidence of record persuasively weighs against a rating in excess of 10 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Taylor, 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.