Citation Nr: 22017476 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 17-35 747 DATE: March 25, 2022 ORDER Entitlement to an initial disability rating in excess of 10 percent for lumbar strain prior to July 31, 2014, in excess of 40 percent between July 31, 2014, and March 5, 2015, and in excess of 20 percent after March 5, 2015, is denied. FINDINGS OF FACT 1. Prior to July 31, 2014, the Veteran's lumbar strain was manifested by pain and limitation of motion. 2. Between July 31, 2014, and March 5, 2015, the Veteran's lumbar strain was manifested by limitation of forward flexion to 30 degrees, without findings of unfavorable ankylosis of the spine. 3. From March 5, 2015, the Veteran's lumbar strain was manifested by forward flexion to at least 45 degrees, without a demonstration of ankylosis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for lumbar strain prior to July 31, 2014, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a. 2. The criteria for a rating in excess of 40 percent for lumbar strain between July 31, 2014, and March 5, 2015, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a. 3. The criteria for a rating in excess of 20 percent for lumbar strain from March 5, 2015, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from November 1981 to June 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). The case was remanded by the Board in September 2020 and September 2021 for further development of the evidence. This has been accomplished and the case has been returned for further appellate consideration. Increased rating The Veteran claims entitlement to a higher initial rating for service-connected lower back disability. On October 5, 2012, the Veteran claimed entitlement to service connection for a lower back disability. The RO granted service connection in a rating decision dated in June 2014 with a noncompensable rating initially assigned. The Veteran appealed the initial rating and subsequent rating decisions increased the evaluation of the lumbar strain to staged ratings with an initial 10 percent rating prior to July 31, 2014, a 40 percent rating from July 31, 2014, to March 5, 2015, and a 20 percent rating from March 5, 2015. As the Veteran continues to express dissatisfaction with the ratings, and they are less than the maximum under the applicable criteria, the ratings remain on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, 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. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. "Staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The assignment of a staged initial rating including a higher evaluation followed by a lower evaluation will not implicate rules regarding rating reductions. Procedural protection of ratings applies to prospective rating reductions. See 38 C.F.R. §§ 3.105, 3.344; Singleton v. Shinseki, 23 Vet. App. 376 (2010). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. In this matter, the evidence consists of lay statements from the Veteran, VA treatment records, and VA examination reports. A March 2009 evaluation performed in connection with the Veteran's work as a mail carrier. At that time, it was reported that the Veteran was incapacitated due to his low back disorder from three to five days every three to four months. An October 2012 report it was reported that the Veteran had flare-ups two to three times for periods of two to four days over the past 12 months. Private treatment records dated in April 2014 show that the Veteran had complaints of mild, generalized tenderness on palpation. Decreased range of motion was reported. Backache, joint pain, stiffness and myalgia were again noted on examination in early July 2014. A private disability benefits questionnaire examination was conducted by the Veteran's private physician on July 31, 2014. At that time, the diagnoses were lumbar radiculopathy and lumbar contusion. The Veteran reported having flare-ups of pain down the left lower extremity that had precipitated treatments such as injections and physical therapy. Range of motion was shown to be forward flexion to 30 degrees, extension to 10 degrees, right and left lateral flexion to 20 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 10 degrees. The Veteran was unable to stand or sit in one spot for longer than 10 to 15 minutes when the pain was active. The Veteran exhibited pain on passive range of motion and on repetitive use testing. There was pain with weight bearing and on non-weight bearing. There was localized tenderness on palpation of the lumbar spine. The Veteran walked with an antalgic gait with muscle spasm and guarding on movement. There was exaggerated lordosis. There was weakened movement, pain on movement, atrophy of disuse, and interference with sitting and standing. Repeated motion testing showed forward flexion to 30 degrees, extension to 0 degrees, right lateral flexion to 5 degrees, left lateral flexion to 10 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 10 degrees. There was no evidence of ankylosis. It was reported that the Veteran had incapacitating episodes two to three times per year over the past 20 years. These lasted less than one week. An examination was conducted by VA on March 5, 2015. At that time, the diagnoses were degenerative arthritis of the lumbar spine and lumbosacral strain. Range of motion of the spine was forward flexion to 45 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees and right and left lateral rotation to 30 degrees. The range of motion was not believed to cause functional loss. There was no pain on weight bearing and no evidence of localized tenderness or pain on palpation. The Veteran was able to perform repetitive use testing without additional loss of motion. The examination was conducted immediately after repetitive use over time, without additional pain, weakness, fatigability or incoordination. The examination was not conducted during a flare-up, with the Veteran reported having no flare-ups. There was no guarding or muscle spasm. There were no signs or symptoms of radiculopathy. There was no ankylosis or evidence of intervertebral disc syndrome (IVDS). The Veteran's spine disorder was said to impact his current job to the point where he was only able to stand for about 15 minutes and sit for 20 minutes. He was able to perform his job scanning postal trucks. An examination was conducted by VA in December 2020. The diagnoses were degenerative arthritis of the spine, IVDS, and lumbar strain with contusion and degenerative arthritis. His current symptoms included pain that was rated as 8/10 every day. He had difficulty bending, walking, standing and sitting for prolonged time. He reported pain radiating down his left leg. He took pain medication and had received a facet injection about five years earlier. He reported flare-ups with difficulty walking, bending, sitting for a prolonged period and pain during the night. Range of motion was forward flexion to 40 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 30 degrees, right lateral rotation to 20 degrees and left lateral rotation to 20 degrees. Pain was noted in all planes of movement, but there was no evidence of pain with weight bearing. There was no evidence of localized pain or tenderness. The Veteran was able to perform repetitive use testing without additional functional loss or limitation of motion. He was not examined following repetitive use over time or during a flare-up. The examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss during flare-ups or immediately after repetitive use over time. The examiner could not estimate additional function loss or limitation of motion resulting from flare-ups or after repetitive use over time. The Veteran had pain with walking, prolonged sitting and prolonged standing. There was radiculopathy, but no evidence of ankylosis. He had IVDS, but no incapacitating episodes that required bed rest prescribed by a physician and treatment by a physician over the past 12 months. Functional impact was described as pain with walking, standing, sitting and bending. There was objective evidence of pain when the spine was non-weight bearing. It was noted that passive range of motion could not be performed. An examination was conducted by VA in October 2021. The diagnoses were degenerative arthritis and IVDS. The Veteran reported having flare-ups at least four times per year that were described as from mild to severe. These lasted 3 to 5 days and were precipitated by random flare-ups. These were alleviated by heat, ice, pain medications, and bed rest. The Veteran described functional loss as stiffness and leg pain. Range of motion was described as forward flexion to 55 degrees, extension to 10 degrees, right lateral flexion to 15 degrees, left lateral flexion to 10 degrees, right lateral rotation to 30 degrees and left lateral rotation to 20 degrees. There was pain on all planes of movement. Passive range of motion testing showed the same ranges of motion as active range of motion. There was pain on weight bearing, active range of motion and passive range of motion. There was objective evidence of localized pain and tenderness on palpation. The Veteran was able to perform repetitive use testing with range of motion described as forward flexion to 55 degrees, extension to 10 degrees, right lateral flexion to 15 degrees, left lateral flexion to 10 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 15 degrees. There was functional loss due to pain, fatigability and lack of endurance. The Veteran was not examined after repeated use over time. He was examined during a flareup with identical ranges of motion described. There was no ankylosis. The Veteran did have IVDS, but he did not have incapacitating episodes due to IVDS symptoms. Rating prior to July 31, 2014 The Veteran's lumbosacral strain 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. 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). 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). 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." See Correia v. McDonald, 28 Vet. App. 158 (2016). The spine has no opposite joint. 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. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board finds that, prior to July 31, 2014, the evidence of record persuasively weighs against a rating in excess of 10 percent for lumbosacral strain. The Board acknowledges the Veteran's lay reports and notations in the private outpatient treatment records of symptoms such as pain with some limitation of motion, but even considering these reports of symptoms and noted functional loss, the degree of additional limitation reflected by the evidence is not shown to 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. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. While the private treatment records do describe flare-ups suggesting IVDS, the evidence does not indicate that the Veteran was 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. Regarding neurological impairment, the Veteran has already been granted service connection for peripheral neuropathy of his lower extremities and 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 lumbosacral strain prior to July 31, 2014. 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). Rating between July 31, 2014, and March 5, 2015 On July 31, 2014, the Veteran's rating was increased to 40 percent disabling on the basis of the examination report of that date that showed limitation of forward flexion to only 30 degrees. This rating was maintained until a VA examination on March 5, 2015, that showed this motion range to be 45 degrees. The Board finds that the evidence of record persuasively weighs against a rating in excess of 40 percent during this time. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain and muscle spasm, but even considering these reports, the degree of limitation reflected by the statements that do not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. As such, there is no evidence to support a rating in excess of 40 percent during this time. Consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. However, while the Veteran does have symptoms of IVDS, 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. For this reason, the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 40 percent from July 31, 2014, to March 5. 2015. As the evidence of record persuasively weighs against a rating in excess of 40 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). Rating from March 5, 2015 On March 5, 2015, the range of motion of the Veteran's spine was noted to be forward flexion to 45 degrees. This corresponds to the 20 percent evaluation that was assigned effective that date. The Board finds that the evidence of record persuasively weighs against a rating in excess of 20 percent for the spine disability as of March 5, 2015. On that date, and thereafter, the Veteran's forward flexion was noted to be 45 degrees. Later examination showed forward flexion to be 55 degrees. Even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the record does not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. In this regard, ankylosis of the spine has never been documented in the record and there is no indication that the Veteran has symptoms during a flare-up that are like ankylosis. Consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. However, as above, while the Veteran does have symptoms of IVDS, 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. Based on the foregoing, the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 20 percent for lumbosacral strain from March 5, 2015. As the evidence of record persuasively weighs against a rating in excess of 20 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). C. J. McEntee Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph P. Gervasio 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.