SPINE IMPAIRMENT OF

CHRISTOPHER SEPPANEN · 2026 · Case ID: 26003585

DENIED

Summary

The veteran, who served from October 1981 to October 1985, appeals the denial of increased disability ratings for a status post fracture of the transverse process at L3-L4. The veteran sought ratings in excess of 10 percent prior to January 16, 2019, in excess of 20 percent from January 16, 2019, to October 15, 2025, and in excess of 40 percent thereafter. The Board reviewed VA examinations from August 2018, January 2019, and October 2025, along with the veteran's lay statements and an addendum opinion. For the period prior to January 16, 2019, the veteran reported pain and flare-ups, with forward flexion limited to 70 degrees. The Board found this did not meet the criteria for a rating higher than 10 percent, noting the lack of estimated range of motion during flare-ups and absence of severe muscle spasm or abnormal spinal contour. For the period from January 16, 2019, to October 15, 2025, the veteran reported constant pain and flare-ups, with forward flexion limited to 40 degrees. The Board found this did not meet the criteria for a rating higher than 20 percent, citing the limited frequency and duration of flare-ups. For the period after October 15, 2025, the veteran reported pain and stiffness with forward flexion limited to 30 degrees, and 20 degrees during flare-ups. The Board found this did not meet the criteria for a rating higher than 40 percent, noting the flare-ups did not approximate unfavorable ankylosis. In all instances, the Board found the evidence persuasively weighed against the higher ratings sought, and the benefit-of-the-doubt rule did not apply. All claims for increased ratings were denied.

Rationale

Evidence persuasively weighs against higher ratings.; Lay reports of symptoms and functional loss considered.; Flare-up limitations did not meet criteria for higher evaluations.

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

5237

Docket No.

20-22 243

Full Decision Text

Citation Nr: 26003585
Decision Date: 03/19/26 Archive Date: 03/19/26

DOCKET NO. 20-22 243
DATE: March 19, 2026

ORDER

Entitlement to a rating in excess of 10 percent prior to January 16, 2019 for status post fracture transverse process L3-L4 is denied.

Entitlement to a rating in excess of 20 percent from January 16, 2019 to October 15, 2025 for status post fracture transverse process L3-L4 is denied.

Entitlement to a rating in excess of 40 percent for status post fracture transverse process L3-L4 is denied.

FINDINGS OF FACT

1. Prior to January 16, 2019, the Veteran's status post fracture transverse process L3-L4 was manifested by pain with forward flexion limited to 70 degrees at worst.

2. From January 16, 2019 to October 15, 2025 the Veteran's status post fracture transverse process L3-L4 was manifested by pain with forward flexion limited to 40 degrees at worst. There was no ankylosis.

3. From October 15, 2025 the Veteran's status post fracture transverse process L3-L4 was manifested by pain with forward flexion limited to 20 degrees at worst. There was no ankylosis.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 10 percent prior to January 16, 2019 for status post fracture transverse process L3-L4 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.

2. The criteria for a rating in excess of 20 percent from January 16, 2019 to October 15, 2025 for status post fracture transverse process L3-L4 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.

3. The criteria for a rating in excess of 40 percent for status post fracture transverse process L3-L4 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 FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 1981 to October 1985.

This case was previously before the Board in July 2025, at which time it was remanded for further development. The directives having been substantially complied with, the matter is again before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998).

Increased Rating

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

The Veteran's status post fracture transverse process L3-L4 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 sp
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).

1. Entitlement to a rating in excess of 10 percent prior to January 16, 2019 for status post fracture transverse process L3-L4

The Veteran received a VA examination in August 2018. He reported experiencing constant pain rated at 4/10 with occasionally sharp, shooting pain. He also reported flare-ups, which he described as the muscles becoming irritated and starting to spasm which put pressure on the nerves and required him to sit down. Upon examination he exhibited forward flexion to 70 degrees. There was no additional loss of range of motion after repetitive testing. The examiner did not provide range of motion during flare-ups, stating that "variability of the Veteran's symptoms and functional loss of the lumbar spine is such that providing range of motion analysis during a typical flare-up is not possible." There was muscle spasm which did not result in abnormal gait or abnormal spinal contour. There was no ankylosis. The Veteran reported regular use of a cane.

Following the Board's July 2025 remand, an addendum opinion was obtained regarding the range of motion during flare-ups. The October 2025 opinion stated that an estimate could not be provided because it would require access to information "given on the day by the Veteran and provider's visual and overall assessment."

The Board finds that the evidence of record persuasively weighs against a rating in excess of 10 percent for status post fracture trans
functional loss of the lumbar spine is such that providing range of motion analysis during a typical flare-up is not possible." There was muscle spasm which did not result in abnormal gait or abnormal spinal contour. There was no ankylosis. The Veteran reported regular use of a cane.

The Board finds that the evidence of record persuasively weighs against a rating in excess of 10 percent for status post fracture transverse process L3-L4. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain during flare-ups. 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 would cause muscle spasms and require him to sit down 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. Nor do the Veteran's reports of flare-ups indicate that they were of sufficient frequency or duration to be representative of the Veteran's overall condition during this period. Therefore, the lack of estimated range of motion during flare-ups does not render the record inadequate, as the Veteran's condition during this period may still be ascertained.

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. 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.

For the foregoing reasons, the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 10 percent for status post fracture transverse process L3-L4. 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, 21 F.4th 776 (2021).

2. Entitlement to a rating in excess of 20 percent from January 16, 2019 to October 15, 2025 for status post fracture transverse process L3-L4

The Veteran received a VA examination for the back in January 2019. He reported constant pain, sharp nerve pain, stiffness, and "no mobility with my back." He also reported flare-ups which occurred 3-5 times per year and caused very sharp pain in the lower back which traveled down the legs. Flare-ups lasted 2-3 days. Upon examination he exhibited forward flexion to 40 degrees and combined range of motion to 180 degrees. There was muscle spasm not resulting in abnormal gait or abnormal spinal contour. There was no ankylosis. The examiner indicated the Veteran had IVDS, with no prescribed bed rest. The Veteran also reported regular use of a brace and cane.

The Board finds that the evidence of record persuasively weighs against a rating in excess of 20 percent for status post fracture transverse process L3-L4. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain during flare-ups. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that the Veteran experienced flare-ups consisting of sharp pain that would travel into the legs would 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. Notably, the Veteran reported that his flare-ups occurred only 3-5 times per year and lasted only 2-3 days. This indicates that they were not of sufficient frequency or duration to be representative of the Veteran's overall condition during this period. Therefore, the lack of estimated range of motion
flare-ups. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that the Veteran experienced flare-ups consisting of sharp pain that would travel into the legs would 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. Notably, the Veteran reported that his flare-ups occurred only 3-5 times per year and lasted only 2-3 days. This indicates that they were not of sufficient frequency or duration to be representative of the Veteran's overall condition during this period. Therefore, the lack of estimated range of motion during flare-ups does not render the record inadequate, as the Veteran's condition during this period may still be ascertained.

Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, 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 status post fracture transverse process L3-L4. 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, 21 F.4th 776 (2021).

3. Entitlement to a rating in excess of 40 percent for status post fracture transverse process L3-L4

The Veteran received a VA examination in October 2025. He reported pain and stiffness and that he took Advil or Tylenol as needed for pain. He reported flare-ups that occurred nearly all the time and caused pain and stiffness. Upon examination he exhibited forward flexion to 30 degrees. During flare-ups, the examiner estimated that forward flexion was further limited to 20 degrees. There was no ankylosis.

The Board finds that the evidence of record persuasively weighs against a rating in excess of 40 percent for status post fracture transverse process L3-L4. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain during flare-ups. 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 cause increased pain and stiffness would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine.

For the foregoing reasons, the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 40 percent for status post fracture transverse process L3-L4. 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, 21 F.4th 776 (2021).

Christopher Seppanen

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Creegan, A.

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.

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