Citation Nr: 22017747 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 13-33 743A DATE: March 26, 2022 ORDER Entitlement to a rating in excess of 10 percent for the period prior to October 12, 2021 and in excess of 40 percent from that date, onward, for low back strain with degenerative changes is denied. FINDINGS OF FACT 1. For the period prior to October 12, 2021, the Veteran's back disability did not manifest in forward flexion of the thoracolumbar spine limited to 60 degrees or less; 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. 2. For the period on appeal, the Veteran's back disability did not manifest in ankylosis. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 10 percent for the period prior to October 12, 2021, and in excess of 40 percent from that date, onward, for low back strain with degenerative changes have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.21, 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1990 to February 1999, October 2001 to October 2002, and November 2009 to July 2012. He served honorably in the U.S. Air Force. The Board thanks the Veteran for his service to our country. The Veteran testified before the undersigned at a Board videoconference hearing in December 2015. A transcript of the hearing is of record. The Board previously remanded this case in April 2016, April 2020, and May 2021 for additional development. Upon consideration of additional evidence obtained pursuant to the May 2021 Board remand, an interim October 2021 rating decision assigned a 40 percent rating from October 12, 2021. The case has now returned to the Board for further appellate review. Entitlement to a rating in excess of 10 percent for the period prior to October 12, 2021, and in excess of 40 percent from that date, onward, for low back strain with degenerative changes The Board finds that entitlement to a rating in excess of 10 percent for the period prior to October 12, 2021, and in excess of 40 percent from that date, onward, for the Veteran's lower back disability is not warranted. Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) (for DCs 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Under the General Rating Formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, in pertinent part, the following ratings will apply: A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. 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 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or 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. 38 C.F.R. § 4.71a. A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; 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. 38 C.F.R. § 4.71a. During the pendency of the instant appeal, VA promulgated new regulations governing ratings for musculoskeletal system and muscle disabilities, effective February 7, 2021. See 85 Fed. Reg. 76,453 (Nov. 30, 2020). However, in this case, the new regulations do not reflect significant changes from the prior version of the regulations. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. When determining the severity of musculoskeletal disabilities, which are at least partly rated on the basis of range of motion, VA must consider the extent of additional functional impairment a Veteran may have above and beyond the limitation of motion objectively demonstrated due to pain, limited or excess movement, weakness, incoordination, and premature or excess fatigability, etc., particularly when symptoms "flare up," to include periods of prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp v. Shulkin, 29 Vet. App. 26, 31 35 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). However, where a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. Although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Mitchell v. Shinseki, 25 Vet. App. 32 (2011), quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. The Board has reviewed all of the evidence in the Veteran's record. Although the Board is required to provide reasons and bases supporting its decision, there is no need to discuss each item of evidence in the record. The Board will summarize the pertinent evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence of record shows, or does not show, with respect to the claim. See Gonzalez v. West, 218 F.3d 1278, 1380-81 (Fed. Cir. 2000). In this case, in a June 2013 VA examination report, the Veteran reported that over time, his back had become more painful and that pain occurs not only in the posterior aspect of the back but on top of both hips. He reported flare ups every 3 to 4 days during which he would take pain medication and stated that during flare ups he experienced more pain but his range of motion was not limited. On initial range of motion testing, the examiner noted flexion limited to 60 degrees with painful motion. Extension and left and right lateral flexion and rotation were normal with no objective evidence of painful motion. The examiner noted normal forward flexion, left lateral flexion limited to 25 degrees, and no other changes in limitation of motion on observed repetitive use, noting that the Veteran loosened up a bit and had less discomfort than when he started. The examiner thus concluded that there would be no additional limitation on use due to pain, weakness, fatigue, or incoordination with use or during flare ups. The examiner noted no radicular pain or other signs or symptoms due to radiculopathy. The examiner noted no guarding or muscle spasm and no intervertebral disc syndrome (IVDS). The examiner noted that the Veteran used no assistive device. The examiner concluded that the Veteran's disability was not severe such that he would be equally well served by amputation with prosthesis. The examiner remarked that when flying or sitting for prolonged periods of time, he would use an empty water bottle for lumbar support and that his back would fatigue if he did not sit up straight. In a December 2013 statement, the Veteran relayed that he could not bend his back more than 10 degrees from a vertical position without significant lower back pain and that he could not bend more than 45 degrees from a vertical position without very significant pain. He relayed that he generally needed to support his upper body with his hands on his knees or with a nearby object. He relayed being unable to lift or lower any weight without severe lower back pain. He relayed having multiple rounds of physical therapy over the prior 10 to 15 years and that anti inflammatory drugs were less effective than before. He relayed being unable to accomplish routine tasks like putting on pants, socks, or shoes without significant pain and needing to stand every 10 to 15 minutes to alleviate pain, as sitting for longer periods would result in significant pain. In an October 2015 note, the Veteran reported that pain medication helped as well as stretching and core exercises. The provider noted no spasm of the paraspinal muscles, no tenderness to palpation, and normal motion. The provider noted that pain was not elicited by motion. At the December 2015 hearing, the Veteran testified that he had no problems moving but could not move without pain. He relayed taking anti inflammatories daily and engaging in extensive activities to manage the pain. He testified that if he did not take anti inflammatories and use a heat pack daily, he could not function in his job. He testified that during transcontinental flights he would have to get up every 30 minutes and perform lower back exercises and that typically pilots get up every 3 to 4 hours. He estimated that he could carry up to 50 pounds; otherwise, he would be in considerable pain. In a December 2015 statement, the Veteran relayed hanging for long periods from a bar, doing extensive core exercises, applying heat, and ingesting anti inflammatory medication daily to help mitigate, but not eliminate, significant chronic pain. In a June 2016 VA examination report, the Veteran reported that his back was painful daily. He reported stretching his back by hanging upside down and lifting his legs. He reported using medication up to 1500 mg each day, 5 times each week. He reported that otherwise, he would not be able to go to work due to lower back pain. On initial range of motion testing, the examiner noted forward flexion limited to 80 degrees, extension limited to 15 degrees, and normal left and right lateral flexion and rotation; the examiner noted that range of motion and pain did not contribute to functional loss. The examiner noted forward flexion limited to 70 degrees on observed repetitive use; otherwise, motion was unchanged. The examiner noted that the Veteran was being examined immediately after repetitive use over time. The examiner noted that he was not being examined during a flare up but that pain, weakness, fatigability, or incoordination did not significantly limit functional ability during flare ups. The examiner noted no radicular pain or other signs or symptoms due to radiculopathy. The examiner noted no guarding or muscle spasm, no ankylosis, and no IVDS. The examiner noted that the Veteran used no assistive device. The examiner concluded that the Veteran's disability was not severe such that he would be equally well served by amputation with prosthesis. The examiner noted no other pertinent findings. The examiner noted that the disability has no impact on the Veteran's ability to work and noted the Veteran's statement that he would work 20 percent overtime if he did not have back pain. In an October 2018 note, the Veteran reported intermittent aching lower back pain rated, at worst, at 3 on a scale of 10. He reported that it was provoked with prolonged stasis and relieved with movement and stretching. The provider noted on active range of motion testing lateral flexion, extension, and rotation limited to 50 percent. In an October 2021 VA examination report, the Veteran reported constant back pain. He reported taking anti inflammatories and exercising 30 minutes per day and having his daily routine of stretch exercises. He reported pain constantly fluctuating between 2 to 3 on a scale of 10, with pain increasing to 6 to 7 on a scale of 10 during long haul flights lasting between 6 to 10 hours. He stated that forward flexion further exacerbated the pain. He reported limiting forward flexion to 30 degrees to avoid experiencing moderate to severe pain. He reported missing 13 workdays in December 2020 due to a flare up of pain. He reported that he could not run and would hike in the woods because the ground is softer. He denied work restrictions or special accommodations to do his job. He reported flare ups once to twice each ear. He did not report functional loss. The examiner noted that the Veteran was observed reaching 90 degrees in forward flexion while demonstrating good biomechanics of thoracolumbar spine motions but that when using the goniometer, he limited thoracolumbar flexion to 30 degrees, citing pain as the limiting factor. The examiner noted forward flexion limited to 30 degrees with pain and normal extension and left and right lateral flexion and rotation. The examiner noted no additional limitation of motion on observed repetitive use. The examiner noted that the Veteran was being examined immediately after repetitive use over time. The examiner noted that he was not being examined during a flare up but that pain, and his limitation of forward flexion to avoid experiencing moderate to severe pain, caused functional loss; the examiner concluded that there was no additional limitation of motion. The examiner noted no radicular pain or other signs or symptoms due to radiculopathy. The examiner noted guarding not resulting in abnormal gait or spinal contour, no muscle spasm, no ankylosis, and no IVDS. The examiner noted that the Veteran used no assistive device. The examiner concluded that the Veteran's disability was not severe such that he would be equally well served by amputation with prosthesis. The examiner noted no other pertinent findings. The examiner noted that the disability has no impact on the Veteran's ability to work. The Board finds that, for the period prior to October 12, 2021, a rating in excess of 10 percent is not warranted and, for the period from that date, onward, a rating in excess of 40 percent is not warranted. During the period prior to October 12, 2021, forward flexion was limited, at most, to 60 degrees and combined range of motion was limited, at most, to 210 degrees. During that period there is no evidence of guarding or muscle spasm resulting in abnormal gait or spinal contour and no evidence of ankylosis. Rather, multiple examiners concluded that there was no ankylosis; the Veteran had forward flexion limited, at most, to 60 degrees in a clinical setting and extension limited, at most, to 15 degrees; and left and right lateral flexion and rotation were generally normal. Further, for the period from October 12, 2021, there is no evidence of ankylosis or its functional equivalent. The Board notes the Veteran's representative's contention with respect to an extra schedular rating; however, neither the Veteran nor his representative presented argument identifying symptoms so exceptional as to warrant an extraschedular analysis. Rather, the representative relayed the Veteran's pain with every day tasks such as getting dressed and tying shoes. While the rating schedule does not specifically identify these symptoms in connection with the diagnostic codes under which the back is rated, functional effects associated with a service-connected disability need not be explicitly listed in a diagnostic code in order to show that they are indeed contemplated under that code. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). In this case, as explained above, pain is a factor to be considered with arthritis and other musculoskeletal disabilities. As the natural functional effects of pain may include difficulty walking, bending, lifting, and twisting or other movements of the thoracolumbar spine, such functional effects are contemplated in the diagnostic code under which the Veteran's disability is evaluated. Accordingly, the Board finds that functional loss due to pain is ratable on a schedular basis and that VA has fulfilled its duty to maximize benefits by exhausting all schedular alternatives for rating a disability, including assigning a higher schedular rating if the disability more nearly approximates the higher rating, before triggering the extraschedular analysis, which is meant to be "exceptional." See Morgan v. Wilkie, 31 Vet. App. 162, 164 (2019). As the Board finds that the first Thun element is not met, it does not need to address the second Thun requirement. Hence, after reviewing all the evidence of record, the Board finds that the evidence is persuasively against the claim for increased rating for the lower back disability. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and entitlement to higher ratings is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Vashaw, 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.