Citation Nr: 1745461 Decision Date: 10/12/17 Archive Date: 10/19/17 DOCKET NO. 10-43 773 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an increased rating for a thoracolumbar spine disability, currently rated as 10 percent disabling from October 22, 2008 to October 22, 2009, 20 percent disabling between October 22, 2009 and April 29, 2016, and 40 percent disabling from April 29, 2016 and thereafter. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Ford, Associate Counsel INTRODUCTION The Veteran served active duty in the United States Air Force from August 1951 to August 1955 and from September 1955 to September 1971. This appeal arises before the Board of Veterans' Appeals (Board) from an April 2010 rating decision in which the Department of Veteran Affairs (VA) Houston, Texas, Regional Office (RO) granted an increase from a noncompensable rating, effective October 1, 1971, to a 10 percent disabling evaluation effective October 22, 2008 to October 22, 2009 and a 20 percent disabling evaluation effective October 22, 2009 and thereafter for a back disability. In November 2012, May 2013, April 2016, and November 2016, the Board remanded this appeal for further development. In August 2012, the Veteran testified before a Veterans Law Judge at a Travel Board hearing. A copy of the transcript has been associated with the claims file. This hearing was before a judge that is no longer available to adjudicate the claim. In a February 2016 VA notification letter, the Veteran was notified and given the option of another hearing. In February 2016 correspondence, the Veteran declined the option for another hearing. Therefore, the Board will proceed accordingly. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. Between October 22, 2008 and October 22, 2009, the Veteran's symptoms manifested in forward flexion of the thoracolumbar spine at 80 degrees. The evidence does not establish that, during this time period, the Veteran's forward flexion of the thoracolumbar spine was 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. 2. Between October 22, 2009 and April 29, 2016, the evidence of record establishes the Veteran's combined range of motion for the thoracolumbar spine as 116 degrees and the Veteran's forward flexion of the thoracolumbar spine as 60 degrees. The evidence does not indicate that the Veteran's back disability resulted in forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. 3. After April 29, 2016, the evidence of record establishes the Veteran's low back disability manifested in forward flexion of the thoracolumbar spine at 30 degrees. The evidence does not indicate that the Veteran's back disability resulted in unfavorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. Entitlement to a rating in excess of 10 percent disabling between October 22, 2008 and October 22, 2009 for a thoracolumbar spine disability have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.400, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.25, 4.71a, Diagnostic Code 5242 (2016). 2. Entitlement to a rating in excess of 20 percent disabling between October 22, 2009 and April 29, 2016 for a thoracolumbar spine disability have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.400, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.25, 4.71a, Diagnostic Code 5242 (2016). 3. Entitlement to a rating in excess of 40 percent disabling from April 29, 2016 and thereafter for a thoracolumbar spine disability have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.400, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.25, 4.71a, Diagnostic Code 5242 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS INCREASED RATING Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2016). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1 (2016). Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2016); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2016); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, otherwise the lower rating will apply, 38 C.F.R. § 4.7 (2016); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2016). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods based on the facts found- a practice known as "staged" ratings. In general, all disabilities, including those arising from a single disease entity, are rated separately, and disability ratings are then combined in accordance with 38 C.F.R. § 4.25 (2016). Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14 (2016). It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the Veteran's service-connected disability. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. For non-initial rating claims for increase, all evidence dated from a year prior to the date of receipt of the claim for increase (unless there is a prior final rating adjudication within the one year prior to the claim for increase), through the time adjudication is made, must be considered. 38 C.F.R. § 3.400 (2016). The Veteran has a staged rating of 10 percent disabling, 20 percent disabling, and 40 percent disabling for his thoracolumbar disability under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under Diagnostic Code 5242, which is governed by a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), a 10 percent rating is warranted when the Veteran has 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. 38 C.F.R. § 4.71a, Diagnostic Code 5239 (2016). A 20 percent rating is warranted when 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. Id. A 40 percent rating is warranted when there is forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire spine. Id. A 50 percent rating is warranted when there is unfavorable ankylosis of the thoracolumbar spine. Id. A 100 percent rating is warranted when there is unfavorable ankylosis of the entire spine. Id. Turning to the record of evidence, in December 1971, the RO granted the Veteran a noncompensable rating for a low back disability, effective October 1, 1971. In October 2009, the Veteran submitted a claim for an increased rating for his service-connected back disability. In a February 2009 private medical examination, the Veteran reported dull, constant and aching back pain when sitting, which could interfere with his ability to drive. The Veteran also reported that walking greater than a mile at one time aggravated his back. The Veteran further reported that sleep was restful for the first four hours; however, in the early hours of the morning, he needed to take medication because of problems with his back pain. The Veteran stated that his backache could advance to burning associated with some throbbing sensations. The Veteran reported only temporary relief from these symptoms by changing positions. The examiner stated that the Veteran's forward flexion was to midcalves. The examiner noted that there was limited extension. The examiner also reported that the right-sided rotation was moderately reduced as well as right and left-sided bending. The examiner noted that sitting straight leg raise was negative at 80 degrees. In October 2009 correspondence, a private medical physician stated that the Veteran had been under the physician's care for chronic low back pain since 1995. The physician explained that the Veteran underwent lumbar fusion surgery in 1997 and had continued to have acute exacerbations of low back pain. The physician reported that the Veteran was currently prescribed chronic medication therapy. The physician further reported that the Veteran had been evaluated by pain management. The physician recommended a permanent disability evaluation to properly assess his status. In a November 2009 Statement in Support of the Claim, the Veteran stated that, since his retirement from service, his back condition had worsened, requiring a low back fusion in December 1997. The Veteran went on to state that he continued to have constant episodes of pain and discomfort. The Veteran went on to note that he continued to receive treatment from his doctor for his symptoms. The Veteran reported that his disability affected his enjoyment of life activities, explaining that he could not sit in a movie or church longer than an hour, drive for more than two hours without stopping or sleep for more than seven or eight hours of sleep without waking up in pain. In a February 2010 VA examination, the Veteran reported a history of decreased motion, stiffness, spasms and pain. The Veteran reported that the onset of pain was gradual, and the feeling was mild and dull, with a daily frequency and a duration of hours. The Veteran further reported flare-ups of mild severity, with weekly frequency and a duration of hours. The Veteran reported prolonged sitting and standing as precipitating factors. The Veteran reported mild functional impairment during flare-ups. The Veteran stated that his walking was limited to more than one-fourth mile but less than one mile. Upon physical examination, the VA examiner observed normal gait, normal head position and posture fixed in flexed position. The examiner reported abnormal spinal curvature noting lumbar flattening. The examiner also observed objective abnormalities of thoracic sacrospinalis, noting left and right spasm, pain with motion and tenderness, and left guarding. The examiner reported thoracolumbar spine range of motion as follows: forward flexion at 0 to 66 degrees, extension at 0 to 10 degrees, left lateral flexion at 0 to 10 degrees, left lateral rotation at 0 to 10 degrees, right lateral flexion at 0 to 10 degrees, and right lateral rotation at 0 to 10 degrees. The examiner noted objective evidence of pain on active range of motion and objective evidence of pain following repetitive motion. The examiner went on to note the disability's effect on daily activities, describing mild effects on shopping, exercise, recreation, bathing and dressing; moderate effects on chores and travelling; and prevention of participation in sports. In a June 2010 Statement in Support of the Claim, the Veteran stated that his lumbar spine was far worse than the 20 percent rating evaluation. The Veteran went on to state that he could not sit through any event more than an hour or any car trip over 100 miles. The Veteran also stated that he could not stand on his feet for more than approximately forty minutes or work for more than approximately thirty minutes. The Veteran went on to state that he could not do any work or activity that required bending over, including washing his car. The Veteran reported that he took a high dose of prescribed medication multiple times a day and applied analgesic creams several times a day. The Veteran stated that he could not sleep longer than four hours without awakening to low back pain. In an August 2012 medical opinion from a private chiropractor, the examiner stated that he read the recent functional capacity examination performed on the Veteran. The examiner went on to state that his practice performed a cursory range of motion and neurological examination in order to verify VA findings. The examiner stated that his examination findings were virtually identical to VA findings. The examiner explained that the main difference in interpretation in these findings came with the Veteran's deterioration of quality of life. The examiner went on to explain that the Veteran's activities of daily living had become increasingly challenging for him to perform. The examiner also stated that spinal degeneration and other factors were the prime genesis of his declining quality of life. At an August 2012 Board hearing, the Veteran reported that he had been on a double dose of prescribed medication for approximately two and a half years for his back pain. The Veteran stated that this was because not only did the body adjust to the medication and it took more of it to work, but also the pain level had increased. The Veteran also stated that he could not sit in a two hour movie without standing because of pain. The Veteran went on to state that he could not walk more than about four tenths of a mile before the pain level increased. The Veteran reported difficulty doing activities such as mowing the lawn because it was virtually impossible for him to bend to put the grass away. The Veteran stated he could bend over in a certain way, but not a normal way due to pain. In a January 2013 Statement in Support of the Claim, the Veteran stated that his claim for increased rating was based on worsening of pain and spondylosis of his lumbar spine since 2010. The Veteran reported that he suffered repeated low back pain and degraded ability to function with normality. The Veteran gave an example of having to use a support pillow due to an unrelated surgery which caused slight strain on his lower back. The Veteran stated that this resulted in spasms and severe pain. At a February 2013 VA examination, the Veteran reported current symptoms of stiffness, pain in lower back, difficulty standing more than 45 minutes, and difficulty sleeping. The Veteran further reported difficulty sitting for more than an hour. The Veteran reported that he functioned well on medication. The Veteran stated that pain stayed in his back without radiation or radicular pain. The Veteran did not endorse the statement that flare-ups impacted the function of his thoracolumbar spine. The examiner reported thoracolumbar spine range of motion as follows: forward flexion at 0 to 60 degrees with pain on motion at 60 degrees, extension at 0 to 30 degrees, left lateral flexion at 0 to 30 degrees, left lateral rotation at 0 to 30 degrees, right lateral flexion at 0 to 30 degrees, and right lateral rotation at 0 to 30 degrees. The examiner noted no additional loss of range of motion upon repetitive testing. The examiner did report functional impairment, described as less movement than normal and pain on movement. In a June 2015 private hospital record, an examiner stated that there was degenerative change of all the discs and facets. The examiner further stated that there was an L2-3 disc bulge which in combination with facet hypertrophy and ligamenturn flavum thickening resulted in mild to moderate spinal stenosis. The examiner went on to state that there was also a mild to moderate spinal stenosis at L3-4 secondary to facet hypertrophy and ligamentum flavum thickening. The examiner reported that the spinal canal was otherwise patent and there was no disc protrusion. The examiner stated that there was deconditioning of the posterior paraspinous muscles with fatty infiltration. In an April 2016 VA examination, the examiner reported thoracolumbar spine range of motion as follows: forward flexion at 0 to 30 degrees, extension at 0 to 0 degrees, left lateral flexion at 0 to 20 degrees, left lateral rotation at 0 to 20 degrees, right lateral flexion at 0 to 15 degrees, and right lateral rotation at 0 to 15 degrees. The examiner stated that pain was noted upon examination and that it caused functional loss. The examiner reported that pain was exhibited upon forward flexion, extension, left lateral flexion, right lateral flexion, left lateral rotation and right lateral rotation. The examiner further reported objective evidence of localized pain or tenderness on palpitation of joint or associated soft tissue of the thoracolumbar spine. The examiner stated that there was evidence of pain with weight-bearing. The examiner stated that there was additional loss of range of motion upon repetitive testing, reporting range of motion after repetitive testing as follows: forward flexion at 0 to 20 degrees, extension at 0 to 0 degrees, left lateral flexion at 0 to 20 degrees, left lateral rotation at 0 to 20 degrees, right lateral flexion at 0 to 15 degrees, and right lateral rotation at 0 to 15 degrees. The examiner noted that pain and fatigue caused this functional loss. The examiner further reported muscle spasm resulting in abnormal gait or abnormal spine contour and tenderness not resulting in abnormal gait or abnormal spine contour. The examiner noted additional factors contributing to the disability as less than normal movement, deformity, instability of station, disturbance of locomotion, interference with sitting and interference with standing. The examiner reported no ankylosis of the spine and no IVDS of the thoracolumbar spine. The examiner noted that the Veteran was permanently bent forward as part of his body habitus, and this was compounded by the Veteran's muscle spasms. The examiner reported functional impact on ability to work as limitation on standing, sitting, walking, and bending. In a June 2017 VA examination, the Veteran reported flare-ups, stating that if he had to lie flat on a flat bed, his pain became unbearable. He also stated that he was recently hospitalized for three days for a heart catheterization and experienced severe low back pain greater than the heart condition. The Veteran also reported functional impairment in that he was unable to stand up straight and could not walk over 150 feet without a brief stop due to back pain and leg fatigue. He stated that he was unable to sleep on a flat level bed, instead sleeping in a recliner chair or an adjustable bed. The Veteran reported that that he had to change his back angles from 30 to 45 degrees. He further reported that he could not bend over without pain, could not sit for more than thirty minutes without pain, and could not stand for more than 30 minutes without pain. The examiner reported initial thoracolumbar spine range of motion as follows: forward flexion at 0 to 70 degrees, extension at 0 to 25 degrees, left lateral flexion at 0 to 25 degrees, left lateral rotation at 0 to 25 degrees, right lateral flexion at 0 to 25 degrees, and right lateral rotation at 0 to 25 degrees. The examiner stated that the abnormal range of motion itself did not contribute to a functional loss. The examiner also stated that pain was noted upon examination, but it did not cause functional loss. The examiner reported that pain was exhibited upon forward flexion, extension, left lateral flexion, right lateral flexion, left lateral rotation and right lateral rotation. The examiner further reported that there was no evidence of pain with weight-bearing. The examiner remarked that there was no evidence of pain on non-weight bearing testing of the back. The examiner stated that there was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. The examiner stated that there was no additional functional loss or range of motion after repetitive use. The examiner reported functional impairment, described as less movement than normal and interference with standing. The examiner described functional impact on the Veteran's ability to work as avoidance of jobs that require frequent bending or long standing. In a retrospective opinion, the examiner went further to state that, after review of the Veteran's previous back examinations, he determined that the most recent back examination was similar to the back examination conducted in February 2013 in most aspects of the back examination. The examiner noted that one difference was that the current examination showed better range of motion and other elements of back examination than the back examination in April 2016. The examiner also noted that no passive range of motion was conducted in the prior back examinations, but was done in the current examination. The examiner determined that with the similarities in the current examination and the examination in February 2013, it was at least as likely as not that the examination administered prior to April 2016 in February 2013 would have reflected similar results if such testing had been conducted at that time. After reviewing the record, the Board finds that a rating evaluation of a 10 disabling evaluation from October 22, 2008 to October 22, 2009 for the Veteran's back disability is appropriate. The evidence indicates that during this time period, the Veteran had forward flexion of the thoracolumbar spine at 80 degrees, and the Veteran's symptoms manifested in increased symptoms, such as dull, constant and aching back pain and burning associated with some throbbing sensations. The evidence does not establish that, during this time period, the Veteran's forward flexion of the thoracolumbar spine was greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine was not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Therefore, a 10 percent rating during this time period is warranted. The Board finds that a 20 percent disabling evaluation between October 22, 2009 and April 29, 2016 is appropriate. The evidence of record establishes that, although the Veteran had forward flexion of the thoracolumbar spine of greater than 60 degrees in the February 2010 VA examination, the Veteran had a combined range of motion for the thoracolumbar spine of 116 degrees. Moreover, the February 2013 VA examination indicates that the Veteran's forward flexion of the thoracolumbar spine was 0 to 60 degrees. Furthermore, the retrospective medical opinion from the 2017 VA examination indicates that passive range of motion would at least as likely as not have been similar if conducted during the February 2013 examination. Between October 22, 2008 and October 22, 2009, the evidence does not indicate that the Veteran's back disability resulted in forward flexion of the thoracolumbar spine at 30 degrees or less. The evidence also does not indicate that the Veteran had favorable ankylosis of the spine during this time period. As the evidence did not establish that the Veteran met these criteria, a 40 percent rating during this time period is not warranted. Thus, the Veteran's symptoms more closely approximate to a 20 percent disabling evaluation during this time period. The Board finds that a 40 percent disabling rating from April 29, 2016 and thereafter is appropriate. During April 2016 VA examination, the Veteran had forward flexion of the thoracolumbar spine of 30 degrees. The Board notes that the June 2017 VA examination indicates that the Veteran's forward flexion tested higher upon examination. The Board also notes that the record does not establish that the Veteran has suffered from either favorable or unfavorable ankylosis of the spine. Resolving all doubt in favor of the Veteran, the Board thus finds that his entire disability picture warrants 40 percent rating after April 29, 2016, for his back disability. 38 C.F.R. § 4.7 (2016). In making this determination, the Board has considered whether there was any additional functional loss not contemplated in the evaluation for the Veteran's orthopedic manifestations of his service-connected thoracolumbar spine disability. See 38 C.F.R. §§ 4.40, 4.59 (2016); see DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Here, the April 2016 VA examination showed additional loss of function after repetitive testing, which was contemplated in the disabling evaluation. However, there is no evidence that the Veteran's thoracolumbar spine was ankylosed at any point, even considering flare-ups or repetitive motion. Consideration has also been given to the potential application of the various provisions of 38 C.F.R. Part 4, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Notably, the rating of IVDS is based on incapacitating episodes (i.e., doctor-prescribed bedrest). See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2016). However, there is no medical evidence that the Veteran suffered IVDS. Therefore, there exists no basis whatsoever for a higher evaluation under Diagnostic Code 5243. Thus, a higher rating under this diagnostic code is not warranted. In reaching this decision, the Board has considered the Veteran's lay statements in support of his claim. The Board notes that the Veteran is competent to report observations with regard to the severity of his symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, and 1376-77 (Fed. Cir. 2007). The Board finds these lay statements to be credible and consistent with the rating assigned. To the extent he argues his symptomatology is more severe, the Veteran's statements must be weighed against the other evidence of the record. Here, the specific examination findings of trained health care professionals and documented medical treatment records are of greater probative weight than the more general lay assertions that a higher rating is warranted. For all these reasons, the Board finds that a rating in excess of 10 percent disabling prior to October 22, 2009, in excess of 20 percent disabling between October 22, 2009 and April 29, 2016, and in excess of 40 disabling after April 29, 2016 for the Veteran's thoracolumbar spine disability, is not warranted. ORDER A rating in excess of 10 percent disabling, between October 22, 2008 and October 22, 2009, for thoracolumbar spine disability, is denied. A rating in excess of 20 percent disabling, between October 22, 2009 and April 29, 2016, for thoracolumbar spine disability, is denied. A rating in excess of 40 percent disabling after April 29, 2016, for thoracolumbar spine disability, is denied. ____________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs