Citation Nr: 18132275
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 16-02 895
DATE:	September 6, 2018
ORDER
Entitlement to an effective date prior to December 23, 2014 for the assignment of a 20 percent rating for service-connected lumbosacral strain is denied.
FINDING OF FACT
Prior to December 23, 2014, the Veteran’s service-connected lumbosacral strain was manifested by forward flexion to 90 degrees with pain at 85 degrees, with a combined range of motion of 240 degrees, and no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour.
CONCLUSION OF LAW
An effective date earlier than December 23, 2014 cannot be established for the 20 percent disability rating for the service-connected lumbosacral strain.  38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from March 2011 to April 2013.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.
1. Entitlement to an effective date prior to December 23, 2014 for the assignment of a 20 percent rating for service-connected lumbosacral strain.
The Veteran asserts entitlement to an effective date prior to December 23, 2014 for the assignment of a 20 percent rating for service-connected lumbosacral strain.  For the reasons set forth below, the Board finds that an earlier effective date is not warranted.
The Veteran’s claim of entitlement to service connection for a low back disability was received by VA on May 1, 2013, within one year of his separation from active service.  He was afforded a VA examination in May 2014 at which time the examiner diagnosed him with a lumbar strain.  The examiner noted that the Veteran “[c]urrently relates daily low back discomfort without any radiation of pain.  No flares or incapacitating episodes.”  Range of motion testing revealed forward flexion to 90 degrees with pain at 85 degrees, extension was to 30 degrees without pain, right and left lateral flexion to 30 degrees without pain, and right and left lateral rotation to 30 degrees without pain.  There was no additional limitation of motion upon repetitive motion testing.  There was no localized tenderness or pain on palpation.  Muscle strength was intact.  There was no muscle atrophy or ankylosis of the spine.  Deep tendon reflexes were intact; sensory examination was normal.  There was no evidence of guarding of the spine or muscle spasm resulting in an abnormal gait or abnormal spinal contour.  The Veteran denied radicular symptoms.  The examiner reported that the Veteran’s lumbosacral strain does impact his ability to work.  The examiner noted that the Veteran has not worked since separation from military service in April 2013 except for a sales job that he quit because he was not making enough money.  The examiner stated that “[t]his is speculation, however, he is likely to miss some work (less than one week) and would be incapable of any repeated lifting such as working in a warehouse or unloading a truck.”
In an April 2014 rating decision, the Veteran was granted service connection for a lumbosacral strain; an initial 10 percent evaluation was assigned from April 11, 2013, the day following the date of the Veteran’s separation from active service.  In December 2014, the Veteran requested reconsideration of the findings of the April 2014 rating decision.  He asserted that his lumbosacral strain symptoms were more severe than were contemplated by the assigned 10 percent rating.  Specifically, he stated that his lumbosacral strain results in “noticeable abnormal gait as well as significant lean to the right.”  The Veteran submitted a September 2014 private postural assessment.
The Veteran was subsequently afforded a VA examination in March 2015 at which time the examiner reported the following range of motion findings:  forward flexion to 60 degrees; extension to 15 degrees; right lateral flexion to 10 degrees; left lateral flexion to 15 degrees; right lateral rotation to 25 degrees; and left lateral rotation to 15 degrees.  There was pain throughout range of motion.  The examiner reported that the Veteran’s pain causes loss of range of motion.  There was no pain on weight-bearing, and the Veteran did not endorse localized tenderness or pain on palpation.  There was no additional limitation of motion on repetitive use.  The Veteran denied flare-ups of lumbosacral spine symptomatology.  The examiner indicated that he was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limit the Veteran’s functional ability with repeated use over time.  The Veteran’s lumbosacral muscle strength was intact; deep tendon reflexes and sensory examination were normal.  There was no ankylosis of the lumbar spine.  Further, the examiner indicated that the Veteran did not exhibit guarding or muscle spasm nor did he exhibit any other pertinent physical finding, sign or symptom.  The examiner reported that the Veteran’s lumbosacral strain does impact his ability to work in that he has missed a few days from work due to back pain.
After considering the additional evidence discussed above, in an April 2015 rating decision, the RO increased the assigned rating to 20 percent, effective December 23, 2014.  The RO indicated that the effective date of December 23, 2014 was assigned to the 20 percent rating based upon the date of the Veteran’s request for reconsideration.
The Veteran has appealed the RO’s decision, arguing that he is entitled to an effective date of April 11, 2013, for the award of the 20 percent rating for lumbosacral strain.  See the Veteran’s NOD dated April 2015.  
Except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later.  See 38 U.S.C. § 5110; 38 C.F.R. § 3.400.  
Affording the Veteran the benefit of the doubt, the Board finds that the claim at issue in this case is his original application for VA compensation benefits, which he submitted within one year of his separation from active service.  As set forth above, the RO adjudicated that claim in the April 2014 rating decision.  However, the Board will liberally construe the Veteran’s December 2014 communication as a notice of disagreement with the April 2014 rating decision, as the communication reflects the appellant’s dissatisfaction with the initial 10 percent rating awarded in that rating decision.  38 C.F.R. § 20.201.  Thus, his original claim, which was received by VA on May 1, 2013, remained pending.  
Having determined that the date of receipt of his claim was May 1, 2013, the next question for consideration is the date his entitlement to the 20 percent rating arose.  
The Veteran’s lumbosacral strain is rated under 38 C.F.R. §§ 4.71a, DC 5237 (lumbosacral strain), which permits rating under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating when all disabilities are combined.  38 C.F.R. § 4.71a.
Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply.  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 is not greater than 120 degrees; or, muscle spasms 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 when forward flexion of the thoracolumbar spine is 30 degrees or less or with favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent rating is warranted for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a.
Critically, the evidence of record does not show that the Veteran’s lumbosacral strain met the criteria for a 20 percent rating prior to March 31, 2015, the date of the most recent VA examination.  As indicated above, range of motion findings at the time of the March 2015 VA examination showed forward flexion to 60 degrees, which warrants a 20 percent rating under Diagnostic Code 5237.  However, the medical evidence prior to March 2015 does not meet the criteria for a 20 percent rating pursuant to 38 C.F.R. § 4.71a, DC 5237.  Specifically, as set forth above, the evidence shows forward flexion to 90 degrees with pain at 85 degrees, combined range of motion of the thoracolumbar spine to 240 degrees, and no evidence of muscle spasm, guarding, or localized tenderness resulting in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  See the VA examination dated March 2014.  Additionally, outpatient treatment records during this period are pertinently absent any indication of worsening lumbar spine symptoms which would warrant the assignment of a rating in excess of 10 percent.  There is no probative evidence of forward flexion to 60 degrees or less, combined motion of the thoracolumbar spine to 120 degrees or less, or muscle spasm/guarding severe enough to result in an abnormal gait or abnormal spinal contour.  The Board has considered the appellant’s statements that he has an abnormal gait and a significant lean to the right, as well as the postural assessment completed by his chiropractor.  However, as set forth above, the clinical evidence of record reflects that at no time during the period of appeal has there been any indication that the abnormal gait he describes has been produced by muscle spasm or guarding associated with the service-connected lumbosacral strain.  Rather, the clinical evidence reflects that no spasm or guarding has been present.  See 38 C.F.R. § 4.71a, DC 5237.
As noted, the law calls for the assignment of an effective date based on the date of claim or the date entitlement arose, whichever is later.  See 38 C.F.R. § 3.400 (emphasis added).  The April 2015 RO rating decision increased the lumbosacral strain rating based on the report of the March 31, 2015 VA examination.  This was the date the record reflects that the criteria for a 20 percent rating were met, i.e. the date the appellant’s entitlement arose.  
As noted above, however, the RO has assigned an effective date of December 23, 2014 for the 20 percent evaluation and the Board will not disturb the assigned effective date for the 20 percent evaluation.
(Continued on the next page)
 
For the reasons discussed above, the Board concludes that the Veteran is not entitled to a 20 percent rating for his lumbosacral strain prior to December 23, 2014.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; 3.400(o)(2); Gilbert, 1 Vet. App. at 53-56.  The benefit sought on appeal is therefore denied.
 
K. Conner
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	K. K. Buckley, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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