INTERVERTEBRAL DISC SYNDROME (IVDS)

Summary

The veteran, who served from July 1981 to October 1991, appeals the denial of an increased disability rating for his service-connected lumbosacral strain, which is rated under Diagnostic Code 5237. The veteran generally asserts entitlement to a rating exceeding the current 20 percent evaluation. The Board reviewed multiple VA examination reports from November 2013, December 2019, and October 2021. The October 2021 examination noted forward flexion to 60 degrees with pain and lack of endurance, but no additional loss of function with repeated use or flare-ups. The December 2019 examination showed similar findings, with no additional loss of function. The November 2013 examination found no objective painful motion and opined that the veteran's back did not impact his ability to work or cause functional loss. The Board considered the rating criteria for lumbosacral strain, including limitations in range of motion, muscle spasm, ankylosis, and intervertebral disc syndrome (IVDS). The Board found that the objective medical evidence did not support a finding of forward flexion to 30 degrees or less, nor did it indicate ankylosis or IVDS during the period on appeal. The Board acknowledged the veteran's lay testimony but found the objective medical evidence persuasive against a higher rating. Consequently, the Board denied the claim for an increased rating above 20 percent.

Rationale

Objective medical evidence does not support flexion to 30 degrees or less.; No evidence of ankylosis or IVDS found.; Lay testimony acknowledged but not supported by objective findings for higher rating.

Full Decision Text

Citation Nr: 22015553
Decision Date: 03/18/22	Archive Date: 03/18/22

DOCKET NO. 17-32 477
DATE: March 18, 2022

ORDER

Entitlement to a disability rating in excess of 20 percent for service-connected lumbosacral strain is denied.

FINDING OF FACT

For the entire appeal period, the Veteran's service-connected lumbosacral strain was manifested by forward flexion greater than 30 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis or incapacitating episodes due to intervertebral disc syndrome (IVDS).

CONCLUSION OF LAW

The criteria for a rating in excess of 20 percent for service-connected lumbosacral 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 had active-duty service from July 1981 to October 1991.

This matter comes before the Board of Veterans' Appeals (Board) from an November 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

The Board most recently remanded the claim on appeal in September 2021 to obtain a new VA examination assessing the current severity level of the Veteran's service-connected back disability. Now of record is an October 2021 VA examination report addressing the same, and to that extent the Board finds that its September 2021 remand directives have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

1. Entitlement to a disability rating in excess of 20 percent for service-connected lumbosacral strain

The Veteran generally asserts that he is entitled to an increased disability rating in excess of 20 percent. See February 2022 Appellant's Post-Remand Brief.  

The Veteran's service-connected 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.  

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.

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F
 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.

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 Board finds that the evidence of record persuasively weighs against a rating in excess of 20 percent for service-connected lumbosacral strain.  Upon remand, the Veteran was afforded an October 2021 VA examination to assess the severity level of his service-connected back. Per the report, with active range of motion, the Veteran has forward flexion from to 60 degrees, extension to 0 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 25 degrees. Passive range of motion testing was not conducted due to discomfort and the risk of causing further injury to the Veteran. The Veteran experienced pain with active motion resulting in functional loss to the extent of increased discomfort with certain movements, as well as lack of endurance. The VA examiner did not find that the Veteran experienced any additional loss of function or range of motion after three repetitions. With repeated use over time, the VA examiner indicated that the Veteran experienced additional loss of function/range of motion to the extent of forward flexion to 40 degrees, extension to 0 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees; these values were the same with flare-ups. In terms of functional loss, the VA examiner noted that the Veteran's disability causes interference with sitting, standing, less movement than normal, especially with bending over such as to tie his shoes. The VA examiner did not find that the Veteran suffers from ankylosis or IVDS. 

Per the December 2019 VA examination report, with initial range of motion measurements, the Veteran had forward flexion to 70 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 25 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 25 degrees. With observed repetitive use the Veteran did not experience any additional loss of function or range of motion. With repeated use over time, the Veteran experienced additional loss of function/range of motion to the extent of flexion to 65 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees.
 examination report, with initial range of motion measurements, the Veteran had forward flexion to 70 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 25 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 25 degrees. With observed repetitive use the Veteran did not experience any additional loss of function or range of motion. With repeated use over time, the Veteran experienced additional loss of function/range of motion to the extent of flexion to 65 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. With flare-ups, the Veteran experienced additional loss of function/range of motion with forward flexion to 60 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. Similar to the October 2021 VA examination report, passive range of motion could not be conducted for medical reasons. The VA examiner did not find that the Veteran suffers from ankylosis or IVDS.

Per the November 2013 VA examination report, with initial range of motion, the Veteran experienced flexion to greater than 90 degrees, extension to greater than 30 degrees, lateral flexion to greater than 30 degrees, right lateral rotation to greater than 30 degrees, and left lateral rotation to greater than 30 degrees; these measurements were identical after repetitive-use testing. The Veteran did not exhibit any objective painful motion during the testing. Ultimately the November 2013 VA examiner opined that the Veteran's back does not impact his ability to work or cause him any functional loss/functional impairment. The VA examiner did not find that the Veteran suffers from ankylosis or IVDS.

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. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes; October 2021 VA examination report; December 2019 VA examination report; November 2013 VA examination report. 

Regarding neurological impairment, the Veteran has already been granted service connection for radiculopathy of the left and right 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. See December 2021 rating decision. 

Additional treatment records have been reviewed.  However, there is no indication that the Veteran's lumbosacral strain warrants a higher rating.  Further, the Board acknowledges the Veteran's lay testimony that his lumbosacral strain warrants a higher rating.  The Veteran is competent to report his symptoms.  However, the overall objective medical evidence does not support any findings that the Veteran's lumbosacral strain has shown forward flexion to be 30 degrees or less or that there is any ankylosis.  The Board finds the medical evidence highly probative.

For the foregoing reasons, the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 20 percent for service-connected lumbosacral strain as the Veteran suffered at most forward flexion to 40 degrees, without evidence of ankylosis or IVDS during the period on appeal.  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).

 

 

Saudiee Brown

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S.R. Fey, 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.