LUMBAR SPINE DISABILITY

Summary

The veteran, who served in the United States Army from July 2010 to November 2013, appeals the denial of an increased rating for his service-connected lumbar spine disability, currently rated at 40 percent under Diagnostic Code 5237 for Lumbar Strain. The veteran sought a rating in excess of 40 percent, arguing that pain, weakness, and functional loss associated with his condition warranted a higher evaluation. The Board reviewed multiple VA examinations conducted between February 2014 and September 2024. While examinations noted pain with movement and some functional limitations, particularly during flare-ups, the Board found that the evidence did not demonstrate severe functional loss or the functional equivalent of ankylosis, which are required for higher ratings under the General Rating Formula for Diseases and Injuries of the Spine. Specifically, the Board noted that while pain was present, it did not significantly limit functional ability with repeated use over time or during flare-ups to the extent required for a higher rating, and the veteran did not have ankylosis or IVDS. The Board concluded that the veteran's limitations due to pain were within the scope of the currently assigned 40 percent rating, and therefore, an increased rating was not warranted. The benefit of the doubt doctrine was not applied as the evidence did not present an approximate balance.

Rationale

Board reviewed multiple VA examinations from Feb 2014 to Sep 2024.; Examinations noted pain with movement and some functional limitations, especially during flare-ups.; Board found evidence did not demonstrate severe functional loss or functional equivalent of ankylosis required for higher ratings.; Pain limitations during flare-ups did not rise to the level for higher rating.; Veteran did not have ankylosis or IVDS.; Limitations due to pain considered within currently assigned 40% rating.

Full Decision Text

Citation Nr: 24034571
Decision Date: 12/20/24	Archive Date: 12/20/24

DOCKET NO. 20-11 202
DATE: December 20, 2024

ORDER

Entitlement to an increased rating in excess of 40 percent for lumbosacral strain, also referred to lumbar spine disability, is denied.

FINDING OF FACT

The Veteran's lumbar spine disability has not manifested to unfavorable ankylosis of the entire thoracolumbar spine or of the entire spine.

CONCLUSION OF LAW

The criteria for an increased rating in excess of 40 percent for lumbar spine strain have not been met.  38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5237.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from July 2010 to November 2013. 

The claim on appeal has an extensive procedural history, to include being denied in a July 2020 Board decision and appealed to the United States Court of Appeals for Veterans Claims in May 2021.  Most recently, the claim was brought before the Board in January 2022 and March 2023 and was remanded for further development. 

Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities.  38 C.F.R. Part 4.  The Board determines the extent to which a veteran's service-connected disability adversely affects his/her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10.  Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided.  38 C.F.R. § 4.14.

Additionally, when 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).  In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran's claim is to be considered.  See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2.  However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim.  See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007).

Further, when evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  

Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened
Luca v. Brown, 8 Vet. App. 202 (1995).  The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  

Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45).  In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.  The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record.  Burton v. Shinseki, 25 Vet. App. 1 (2011). 

Entitlement to an Increased Rating: Lumbar Spine

The Veteran's service-connected lumbar spine disability is rated as 40 percent disabling under Diagnostic Code 5237 for Lumbar Strain.  Under this diagnostic code, the disability is rated based on the General Rating Formula for Diseases and Injuries of the Spine.  38?C.F.R. §?4.71a, Diagnostic Code 5237. 

Under the General Rating Formula, a 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine.  A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent rating is warranted for unfavorable ankylosis of the entire spine.  Id. 

In February 2014, the Veteran attended a VA examination.  The Veteran reported flare-ups with running.  His range of motion (ROM) was flexion to 90 degrees or greater with no objective evidence of painful motion, extension to 30 degrees or greater with pain at 25 degrees, right lateral flexion to 30 degrees or greater with no evidence of painful motion, left lateral flexion to 30 degrees or greater with pain at 30 degrees, right lateral rotation to 30 degrees or greater with no objective evidence of pain, and left lateral rotation to 30 degrees or greater with pain.  The Veteran was able to perform repetitive use testing with 3 repetitions and his ROM remained the same with no functional loss or additional limitation.  The Veteran did not have localized tenderness or pain to palpation.  He did not have muscle spasms or guarding.  He maintained full muscle strength and did not muscle atrophy.  He did not have radicular pain or symptoms.   He did not have intervertebral disc syndrome (IVDS) and did not require use of assistive devices.  He did not have ankylosis.  The Veteran had no other pertinent findings. 

The Veteran attended another VA examination in October 2018.  The Veteran was documented as having lumbosacral strain and degenerative disc disease (DDD) of the lumbar spine.  The Veteran reported flare-ups with back pain whenever he sits.  He reported having to lean forward and his back being aggravated by leaning back or to the side.  He reported lifting anything without proper body mechanics causes pain.  He reported his flare-ups limit prolonged sitting, lifting, and bending, which also causes functional loss.  His ROM was forward flexion to 85 degrees, extension to 20 degrees, bilateral lateral flexion to 30 degrees, and bilateral lateral rotation to 30 degrees.  ROM itself did contribute to functional loss in limiting bending.  Pain was noted on examination in all ranges and caused functional loss.  There was pain with weight bearing.  There was evidence of localized tenderness or pain on palpation.  The examiner was unable to say without resorting to mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over time or during flare-ups.  The examiner explained there was no conceptual or empirical basis for making such a determination without directly observing function under those conditions.  The Veteran did have muscle spasms that resulted in abnormal gait.  He did not have any guarding.  The Veteran had full muscle strength and did not have muscle atrophy.
.  ROM itself did contribute to functional loss in limiting bending.  Pain was noted on examination in all ranges and caused functional loss.  There was pain with weight bearing.  There was evidence of localized tenderness or pain on palpation.  The examiner was unable to say without resorting to mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over time or during flare-ups.  The examiner explained there was no conceptual or empirical basis for making such a determination without directly observing function under those conditions.  The Veteran did have muscle spasms that resulted in abnormal gait.  He did not have any guarding.  The Veteran had full muscle strength and did not have muscle atrophy.  The Veteran did not have radicular pain or symptoms due to radiculopathy.  He did not have ankylosis of any kind or IVDS.  The examiner noted that the Veteran experiences pain in the lumbar area during the examination while seated, laying down, and while the thoracolumbar spine was in non-weight bearing.  The examiner further found it was not feasible to test passive ROM as it could cause injury to the Veteran. 

In June 2021, the Veteran attended a VA examination.  The Veteran reported flare-ups in the form of pain when turning his thorax and with lateral bending.  The Veteran reported functional loss in not being able to work out with weights, issues with lifting, pain while playing with kids, pain with sex, and issues rolling over in bed.  His ROM was noted as abnormal or outside of range.  ROM itself contributed to functional loss with difficulty with picking things up or lifting.  The Veteran's ROM was forward flexion to 60 degrees, extension to 20 degrees, bilateral lateral flexion to 20 degrees, and bilateral lateral rotation to 30 degrees.  Pain was exhibited with forward flexion, extension, and right lateral flexion.  Passive ROM remained the same with the same pain exhibited.  There was evidence of pain in active motion and passive motion.  There was no evidence of crepitus.  There was no evidence of localized tenderness or pain on palpation.  The Veteran was able to perform repetitive use testing with at least three repetitions.  ROM did not change after repetitive testing.  Pain significantly limited functional ability with repeated use over time and during flare-ups.  There was no evidence of change in ROM with repeated use over time or during flare-ups, only increased pain.  The Veteran did not have muscle spasm.  He did have guarding that did not result in abnormal gait or spinal contour.  The Veteran did not have muscle atrophy.  The Veteran did not have radiculopathy.  There was no ankylosis of the spine of any kind or IVDS.  The Veteran did not have need for assistive devices. 

The Veteran attended an examination in May 2023.  The Veteran reported chronic pain that is most prominent with prolonged ambulation, bending especially with heavy weights, and pain with certain movements.  The Veteran did not report flare-ups.  The Veteran did report functional loss, stating when his pain is severe it impacts his functional capacity.  ROM itself did contribute to functional loss due to pain and stiffness which decreases his ROM.  The Veteran's ROM was forward flexion to 55 degrees, extension and bilateral lateral flexion to 20 degrees, and bilateral lateral rotation to 25 degrees.  Pain was noted on forward flexion and extension.  Passive ROM testing was performed, and the Veteran's ROM and pain remained the same.  There was evidence of pain in active and passive motion that did not result in functional loss.  There was slight tenderness to palpation at the lower paralumbar.  The Veteran was able to perform repetitive use testing and did not suffer additional loss after.  Pain did significantly limit functional ability with repeated use over time.  Estimated ROM with repeated use over time was forward flexion to 45 degrees, extension to 15 degrees, bilateral lateral rotation to 25 degrees, and bilateral lateral flexion to 20 degrees.  The Veteran did have localized tenderness that did not result in abnormal gait or spinal contour.  There was no guarding or muscle spasm.  There was no radiculopathy.  The Veteran did not have ankylosis or IVDS.  The Veteran did not have need for assistive devices.

In September 2023, the May 2023 VA examiner provided an addendum opinion.  The examiner provided that the estimated ROM for the Veteran during flare-ups was forward flexion to 50 degrees, and the rest of the ranges remained the same. 

Recently, the Veteran attended a VA examination in September 2024.  The Veteran reported progression of back symptoms over time and ongoing pain in the lumbar region.  He
 did have localized tenderness that did not result in abnormal gait or spinal contour.  There was no guarding or muscle spasm.  There was no radiculopathy.  The Veteran did not have ankylosis or IVDS.  The Veteran did not have need for assistive devices.

In September 2023, the May 2023 VA examiner provided an addendum opinion.  The examiner provided that the estimated ROM for the Veteran during flare-ups was forward flexion to 50 degrees, and the rest of the ranges remained the same. 

Recently, the Veteran attended a VA examination in September 2024.  The Veteran reported progression of back symptoms over time and ongoing pain in the lumbar region.  He reported his pain daily on average is a 5 out of 10, on a scale of 0-10, with 10 being the worst.  He stated his pain worsens with activity and is then a 7 out of 10.  He stated the pain feels like knots throughout his back.  The Veteran reported flare-ups in the form of increased pain.  He described them as sharp and causing temporary immobilization.  His flare-ups occur on average one time per week.  His flare-ups occur by certain activities such as sexual intercourse or playing with his children.  His flare-ups last from seconds to one hour and are relieved with muscle relaxers, time, and rest.  His flare-ups result in limitation of motion and are severe.  He reported functional loss with repeated use over time in the form of difficulty with lifting, carrying, playing with his children, sexual activities, running, prolonged sitting, and prolonged standing.  ROM itself contributed to functional loss due to decrease ROM which limits his ability to complete certain motions or tasks.  His ROM was forward flexion to 60 degrees, extension to 15 degrees, and bilateral lateral flexion and bilateral lateral rotation to 20 degrees.  Pain was exhibited in all ranges of motion.  ROM due to pain was forward flexion to 40 degrees, extension to 10 degrees, and bilateral lateral flexion and bilateral lateral rotation to 15 degrees.  The examiner noted the Veteran exhibits pain in all planes, but the Veteran voluntarily continued motion past the onset of pain.  Passive ROM was not able to be performed due to severe pain or risk of injury to the Veteran.  There was pain on weight-bearing, nonweight-bearing, and active motion that resulted in functional loss.  There was no crepitus.  There was mild localized tenderness to palpation along the right upper thoracic region and bilateral lower lumbar regions.  The Veteran was able to perform repetitive use testing and there was no additional loss after.  Pain did significantly limit functional ability with flare-ups.  His estimated ROM during flare-ups was forward flexion to 20 degrees, extension to 5 degrees, and bilateral lateral flexion and bilateral lateral rotation to 10 degrees.  The Veteran's localized tenderness did not result in abnormal gait or spinal contour.  He did not have muscle spasm or guarding.  Additional factors contributing to his disability was interference with sitting and standing, and less movement than normal.  The Veteran did not have muscle atrophy.  He did not have radiculopathy.  There was no ankylosis or IVDS.  He did not use any assistive devices.  The examiner noted the Veteran reported his symptoms were similar since his initial filing in November 2013.  He reported the symptoms progressed from just his lower back to his mid and upper back.  He reported he had flare-ups similar to his current flare-ups and due to carrying more weight between November 2013 and July 2013, he thinks his lumbar symptoms were slightly worse. 

The September 2024 examiner also provided an addendum opinion.  The examiner opined that the Veteran's flare-ups do result in additional limitations of the lumbar spine; however, the limitation does not rise to the degree that would result in the functional equivalent of ankylosis.  Regarding functional loss and flare-ups from November 2013 to July 2020, as noted above, the examiner provided that the Veteran reported his symptoms were similar then to how they are currently.  The Veteran further reported he suffered from flare-ups that occurred on average one time a week with sharp pain that causes temporary immobilization.  The examiner then estimated the Veteran's active ROM from November 2013 to July 2020 is forward flexion to 55 degrees, extension to 10 degrees, and bilateral lateral flexion and bilateral lateral rotation to 15 degrees.  The Veteran's estimated ROM with flare-ups was forward flexion to 15 degrees, extension to 0 degrees, and bilateral lateral flexion and bilateral lateral rotation to 5 degrees.  The examiner further opined that the Veteran did not have additional limitation with
 noted above, the examiner provided that the Veteran reported his symptoms were similar then to how they are currently.  The Veteran further reported he suffered from flare-ups that occurred on average one time a week with sharp pain that causes temporary immobilization.  The examiner then estimated the Veteran's active ROM from November 2013 to July 2020 is forward flexion to 55 degrees, extension to 10 degrees, and bilateral lateral flexion and bilateral lateral rotation to 15 degrees.  The Veteran's estimated ROM with flare-ups was forward flexion to 15 degrees, extension to 0 degrees, and bilateral lateral flexion and bilateral lateral rotation to 5 degrees.  The examiner further opined that the Veteran did not have additional limitation with repeated use over time. 

The Board notes that the Veteran also attended a VA examination in August 2022.  However, in March 2023, the Board previously found the examination was inadequate as the examiner did not properly consider the Veteran's statements or reports of pain and was contradictory in its findings.

After review of the evidence of record, the Board finds that a rating in excess of 40 percent is not warranted anytime during the pendency of the appeal.  The Board acknowledges VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated and those factors are not contemplated in the relevant criteria when evaluating limitation of motion for joint disabilities.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca at 202.  However, the Board notes that there is no evidence in medical records showing severe functional loss due to the Veteran's lumbar spine disability to the extent that the Veteran's lumbar spine disability more nearly approximated ankylosis.  In fact, the September 2024 VA examiner opined that the Veteran's limitation did not rise to the degree of functional equivalent of ankylosis.  Additionally, while functional loss was noted due to pain, no functional impairment was noted due to weakness, excess fatigability, or incoordination.  While the Veteran has been documented as being significantly limited due to pain during flare-ups with ROM estimated at worst to be forward flexion to 15 degrees and extension to 0, the Veteran reported his flare-ups only occur about once a week.  The Veteran has also never been found to have muscle atrophy or IVDS.  The Board recognizes that the Veteran was found to have muscle spasms in his October 2018 examination and guarding during his June 2021 examination; however, each were found to not cause abnormal gait or spinal contour.  Additionally, the Board again notes that at no time has the Veteran's condition risen to the level of unfavorable ankylosis of the entire thoracolumbar spine or spine, or the functional equivalent of ankylosis.  Therefore, the Veteran's limitation of motion due to pain is considered within his currently assigned rating under the Diagnostic Code and DeLuca, and a rating in excess of 40 percent is not warranted.  See 38 C.F.R. § 4.71a, DC 5237, See also Chavis v. McDonough, 34 Vet. App. 1, 20 (2021).

In light of the foregoing, the Board concludes a rating in excess of 40 percent is not warranted.  The benefit of the doubt doctrine is not for application.  See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).  

 

 

JENNIFER HWA

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Negron, 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.