INTERVERTEBRAL DISC SYNDROME

Summary

The veteran, who served from July 2004 to July 2008, appeals the denial of an initial disability rating in excess of 10 percent for lumbar pain. The Board reviewed the evidence of record at the time of the agency of original jurisdiction's decision, as the veteran withdrew his hearing request. The veteran submitted a September 2018 letter from a private provider noting spasms and tenderness with limited range of motion, but no specific values were provided. A January 2019 VA examination found forward flexion to 90 degrees and combined range of motion to 240 degrees, with no abnormal gait, spinal contour, or radiculopathy. The veteran reported daily pain and flare-ups, but stated flare-ups did not limit his ability to move. The Board found the preponderance of the evidence against a rating higher than 10 percent, noting that the criteria for a 20 percent rating (e.g., flexion limited to 60 degrees, combined motion to 120 degrees, or severe muscle spasm) were not met. While acknowledging the veteran's reports of pain and functional loss, the Board found the evidence did not support a higher rating, and the benefit of the doubt doctrine was not applicable. The appeal for a rating in excess of 10 percent for lumbar pain was denied.

Rationale

Preponderance of evidence against rating higher than 10%; Criteria for 20% rating not met; No severe muscle spasm or guarding causing abnormal spinal contour

Full Decision Text

Citation Nr: A22000130
Decision Date: 01/05/22	Archive Date: 01/05/22

DOCKET NO. 190531-20577
DATE: January 5, 2022

ORDER

Entitlement to an initial rating in excess of 10 percent for lumbar pain is denied.

FINDING OF FACT

Lumbar pain is manifested by pain and stiffness, with forward flexion better than 60 degrees. 

CONCLUSION OF LAW

The criteria an initial rating in excess of 10 percent for lumbar pain 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 served on active duty from July 2004 to July 2008. 

The rating decision on appeal was issued in February 2019 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In the May 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket.  In April 2021, he withdrew the hearing request through his authorized representative.

Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative within 90 days following receipt of the withdrawal.  38 C.F.R. § 20.302(b).

1. Entitlement to an initial rating in excess of 10 percent for lumbar pain

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 lumbar pain 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.  

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.
  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).

The Veteran submitted a September 2018 letter from a private provider. The letter stated that the Veteran exhibited spasms and tenderness upon palpation and that his lumbar range of motion was limited during all ranges of motion, especially lumbar flexion/extension. No range of motion values were provided. 

The Veteran received a VA examination in January 2019. He reported daily pain that increases as the day goes on and that he has to be extremely careful to avoid activities that would "pull it." He also reported flare-ups which he described as his back freezing from pain after using it a lot and stated, "I can't move." The examiner asked for further clarification, and the Veteran indicated that he isn't incapable of motion during these flare-ups, but that it hurts a lot more. Upon examination the Veteran exhibited forward flexion to 90 degrees and combined range of motion to 240 degrees. There was no additional loss of function after repetitive testing. Muscle strength testing and reflex exams were normal. Straight leg testing was normal. There were no signs of radiculopathy. There was no muscle spasm or guarding and no ankylosis. 

The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for lumbar pain. To warrant a 20 percent rating, there would need to be forward flexion limited to 60 degrees, combined range of motion limited to 120 degrees, or muscle spasm or guarding resulting in abnormal spinal contour. This is not shown here. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain. However, despite the Veteran's reports that he experiences flare-ups that cause increased pain, he has stated that the flare-ups do not limit his ability to move. Therefore, there is no evidence that his flare-ups would 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.  The Board notes that the September 2018 treatment record states that spasm was present. However, the notes do not indicate that the spasm was severe enough to cause abnormal spinal contour. 

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. 

Regarding neurological impairment,
 notes that the September 2018 treatment record states that spasm was present. However, the notes do not indicate that the spasm was severe enough to cause abnormal spinal contour. 

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. 

Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has neurological abnormality associated with his spine disability.

For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for lumbar pain.  The evidence is not in relative balance.  In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

 

 

H. N. SCHWARTZ

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Creegan, Amanda

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.