Citation Nr: 1803692	
Decision Date: 01/19/18    Archive Date: 01/29/18

DOCKET NO.  13-06 162	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to an initial rating in excess of 10 percent for thoracic sprain.  


REPRESENTATION

Appellant represented by:	Robert C. Brown, Jr., Attorney


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

T. Grzeczkowicz, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 2002 to September 2006 and from March 2009 to March 2010.  

This matter is on appeal from a rating decision in June 2012 by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.  

The Veteran testified before the undersigned Veterans Law Judge in May 2015.  A transcript of the hearing is of record.  

In November 2015, the Board remanded the Veteran's claim for further development. Pursuant to the Board's remand, the agency of original jurisdiction (AOJ) scheduled the Veteran for appropriate VA examinations, searched for outstanding VA treatment records, provided appropriate notice to the Veteran, and issued a supplemental statement of the case (SSOC).  Based on the foregoing actions, the Board finds that there has been substantial compliance with the Board's remand.  Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders). 


FINDING OF FACT

The Veteran's thoracic sprain has been manifested by pain and limited range of motion of the thoracolumbar spine with forward flexion to 80 degrees, extension to 15 degrees, without objective evidence of muscle spasm, guarding, abnormal mobility, abnormal gait, reversed lordosis, scoliosis, abnormal kyphosis, incapacitating episodes of at least two weeks in the past 12 months due to intervertebral disc syndrome, or ankylosis of the entire thoracolumbar spine.



CONCLUSION OF LAW

The criteria for the assignment of a disability evaluation in excess of 10 percent for the service-connected thoracic sprain have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5235-5243 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duty to Notify and Assist 

VA provided the Veteran with 38 U.S.C. § 5103 (a)-compliant notice, most recently in December 2015. 

The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claim, including with respect to VA examination of the Veteran.  Neither the Veteran nor his representative has identified any deficiency in VA's notice or assistance duties.  See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

II.  Law and Regulations 

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4.  38 U.S.C. § 1155.  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21. 

Where there is a question as to which of two evaluations (ratings) shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. 

In deciding this appeal, VA has specifically considered whether separate ratings for different periods of time are warranted, assigning different ratings for different periods of the Veteran's appeal.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). 

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology or evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.

The factors involved in evaluating, and rating disabilities of the joints include weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination (impaired ability to execute skilled movements smoothly); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); or pain on movement, swelling, deformity, or atrophy of disuse.  38 C.F.R. § 4.45. 

In DeLuca v. Brown, 8 Vet. App. 202 (1995), the United States Court of Appeals for Veterans Claims (Court) held that for disabilities evaluated on the basis of limitation of motion, VA was required to apply the provisions of 38 C.F.R. §§ 4.40, and 4.45, pertaining to functional impairment.  The Court instructed that, in applying these regulations, VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination.  Such inquiry was not to be limited to muscles or nerves.  These determinations were, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. 

The Court held that pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination and endurance to constitute functional loss.  Mitchell v. Shinseki, 24 Vet. App. 32, 33, 43 (2011).  Although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment.  Id.   

In Mitchell, the 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 ).  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.  Therefore, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints.  Muscle spasm will greatly assist the identification.  Sciatic neuritis is not uncommonly caused by arthritis of the spine.  The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased.  Flexion elicits such manifestations.  The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.  38 C.F.R. § 4.59.

Diagnostic Code 5235, Vertebral fracture or dislocation; Diagnostic Code 5236, Sacroiliac injury and weakness; Diagnostic Code 5237, Lumbosacral or cervical strain; Diagnostic Code 5238, Spinal stenosis; Diagnostic Code 5239, Spondylolisthesis or segmental instability; Diagnostic Code 5240, Ankylosing spondylitis; Diagnostic Code 5241, Spinal fusion; and Diagnostic Code 5242, Degenerative arthritis of the spine; are rated under the following general rating formula for diseases and injuries of the spine.  38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242. 

With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent evaluation will be assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 Codes 5235 to 5242.

A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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.  38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242.

A 40 percent rating will be assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent evaluation will be assigned for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent rating will be assigned for unfavorable ankylosis of the entire spine.  Id.

Note (1): Evaluate any associated objective neurologic abnormalities, including but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.  Id. 

Note (2): For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the thoracolumbar spine is 240 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.  Id.

Diagnostic Code 5243 provides that intervertebral disc syndrome (preoperatively or postoperatively) be rated either under the General Rating Formula for Disease and Injuries of the Spine, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.  38 C.F.R. § 4.71a, Diagnostic Code 5243. 

Under Diagnostic Code 5243, a 10 percent rating is warranted with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months.  A 20 percent rating is warranted where there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months.  A 40 percent rating is warranted where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months.  A 60 percent rating is warranted where there are incapacitating episodes having a total duration of at least six weeks during the past 12 months.  Diagnostic Code 5243 defines an incapacitating episode as a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician.  Id.

III.  Factual Background

On a June 2012 Family Medical Specialists treatment note, the Veteran reported back pain after lifting a big box.   

At a January 2012 VA Back (Thoracolumbar Spine) Conditions examination, the Veteran reported that in 2009, he was opening a refrigerator and reaching for a gallon of milk and he felt pain in his back.  The Veteran indicated that he experienced flare-ups.  On physical examination, range of motion was: forward flexion to 80 degrees, with painful motion beginning at 80 degrees, extension to 30 degrees or greater, with no objective evidence of painful motion, right and left lateral flexion to 30 degrees or greater, right and left lateral rotation to 30 degrees or greater with no objective evidence of painful motion.  The examiner noted that the Veteran had pain on movement after repetitive use.  The examiner indicated that the Veteran had localized tenderness or pain to palpation for joints and/or soft tissue, specifically thoracic muscle tenderness.  The examiner reported that the Veteran did not have any guarding or muscle spasms resulting in abnormal gait, abnormal spine contour, such as scoliosis, reversed lordosis, or abnormal kyphosis or guarding and/or muscle spasms resulting in abnormal gait or spinal contour.  Muscle strength was normal and there was no muscle atrophy.   Sensory examination was normal and straight leg raising test was negative bilaterally.  The examiner noted that there was no radiculopathy, intervertebral disc syndrome (IVDS) or incapacitating episodes.  The Veteran denied the use of any assistive devices.  The examiner indicated that the Veteran's thoracolumbar spine condition impacted his ability to work in that when his upper back flared up, he rested and would go to see a doctor.  

On a June 2012 VA Back examination, the Veteran reported that his back pain began in 2009.  The examiner diagnosed the Veteran with thoracic spine strain.  On physical examination, range of motion was: forward flexion to 85 degrees, with painful motion beginning at 85 degrees, extension to 25 degrees or greater, with painful motion beginning at 25 degrees, right and left lateral flexion to 30 degrees or greater, and right and left lateral rotation to 30 degrees or greater with no objective evidence of painful motion.  The examiner noted that the Veteran had pain on movement after repetitive use.  The examiner indicated that the Veteran had localized tenderness or pain to palpitation for joints and/or soft tissue of the thoracolumbar spine (back) which was further described as right-sided paravertebral muscle pain and tenderness with palpitation at approximately T5-6.  The examiner noted that the Veteran did not have guarding or muscle spasms resulting in abnormal gait, abnormal spine contour or guarding or muscle spasms.  Muscle strength was normal.  The examiner indicated that the Veteran did not have muscle atrophy.  Reflex and sensory examination were all normal.  Straight leg raising test was negative, bilaterally.  The examiner noted that the Veteran did not have radiculopathy or IVDS and incapacitating episodes.  The Veteran denied the use of any assistive devices.  The examiner indicated that the Veteran's thoracolumbar spine condition impacted the Veteran's ability to work in that he had difficulty in bending, stooping, and twisting his upper body during flare-ups.  

On a July 2012 Warren Clinic treatment note, the Veteran reported back pain.  On physical examination, the Veteran did not have any thoracic spine tenderness and normal mobility and curvature were reported.  

On an October 2014 VA Primary Care Note, the Veteran reported a history of back pain since 2009.  The Veteran indicated that he had flare-ups of pain about two to three times a week, but the last pain had lasted four or five weeks.  The Veteran noted that the pain felt like someone sticking a knife in his back and that the pain was located a couple of inches below the left shoulder blade and that the pain sometimes radiated straight across to the right shoulder.  The Veteran reported the use of NSAIDs and muscle relaxants for the pain.  The Veteran indicated that he experienced paravertebral spasms in his thoracic spine.  The impression was back pain.  

At a May 2015 Board videoconference hearing, the Veteran testified that he was experiencing symptoms of acute back pain between his shoulder blades during the hearing.  The Veteran indicated that his pain was completely debilitating during flare-ups and he experienced loss of range of motion as a result of the pain where it became hard to twist and bend.  The Veteran noted that he had a really bad episode where he had something in his hand and he felt pain in his upper right back around the spine resulting in the Veteran becoming completely debilitated and that he had to go the emergency room and he was out of work for two weeks.  The Veteran indicated that he typically experienced three, four or five days of bed rest during flare-ups.  The Veteran stated that he used muscle relaxers, pain medication and anti-inflammatories to treat his back pain.   The Veteran noted that he experienced back pain since being discharged from service and that it had increased in severity.  

At a June 2015 private medical examination, Dr. J.E. reported that the Veteran continued to experience pain and flare-ups in his back on a regular basis.  Dr. J.E. noted that the Veteran experienced such severe symptoms five to six weeks out of the year, that he would have to stay home from work.  Dr. J.E. indicated that the Veteran's flare-ups would last from five days to two weeks and that he usually went to the emergency room or his primary care doctor and he is prescribed pain medication, muscle relaxers and anti-inflammatories for his back.  Dr. J.E. reported that the Veteran had such a severe flare-up in January 2014 that he went to the emergency room and he was referred to his primary care physician who ordered an MRI and he was placed on bedrest for two weeks but returned back to work after one week and he had another severe flare-up.  Dr. J.E. indicated that the Veteran avoided any heavy lifting or activities which irritate his back, but that the Veteran's flare-ups come on very quickly without warning.  On physical examination, range of motion was: forward flexion to 90 degrees, extension to 15 degrees, right and left lateral flexion to 15 degrees or greater, right and left lateral rotation to 15 degrees.  Dr. J.E. reported that the Veteran had tenderness to palpitation in the thoracic region, especially near the scapula region and that he had palpable spasms in this region.  Dr. J.E. noted that straight leg raise test was negative, bilaterally.  

At a March 2016 VA Back examination, the Veteran reported that he first experienced symptoms in June 2009 when he was reaching into the refrigerator at Fort Hood and he felt an excruciating pain in his upper back.  The Veteran indicated that his condition had gotten worse with increasing frequency over the past few years.  On physical examination, range of motion was: forward flexion to 90 degrees, extension to 30 degrees or greater, with painful motion beginning at 25 degrees, right and left lateral flexion to 30 degrees or greater, right and left lateral rotation to 30 degrees or greater.  The examiner noted that the Veteran experienced mild tenderness to palpitation in the left scapula region of his back.  The examiner noted pain on examination but that it did not result in or cause functional loss.  The examiner indicated that he could not say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time because the range of motion testing was for the lumbar spine and the Veteran's condition was in the left rhomboid area.  The examiner indicated that the Veteran had localized tenderness, guarding, or muscle spasms not resulting in abnormal gait or abnormal spine contour.  Muscle strength was normal.  The examiner indicated that there was no muscle atrophy.  Reflex and sensory examination were normal.  Straight leg raising test was negative, bilaterally.  The examiner noted that there was no radiculopathy or IVDS.  Imaging studies did not show arthritis.  The Veteran denied the use of any assistive devices.  The examiner noted that the Veteran's back disability impacted his ability to work in that he could not do repetitive heavy lifting.  

IV.  Analysis 

The Veteran's service-connected thoracic sprain has been rated as 10 percent disabling pursuant to Diagnostic Code 5237.  

For historical purposes, the Veteran filed for service connection for low back strain in October 2011.  A June 2012 rating decision granted service connection and a 10 percent rating was assigned from October 24, 2011, under Diagnostic Code 5237.  The Veteran disagreed with the initial rating assigned, and this appeal ensued.  

The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the assignment of a disability evaluation in excess of 10 percent for the service-connected low back strain.  The weight of the competent and credible evidence establishes that the service-connected low back strain is manifested by pain and pain and tenderness to palpation.  Gait and posture were normal.  See the VA examination reports dated in January 2012, June 2012, and March 2016. 

Based on the evidence of record, an increased rating in excess of 10 percent for the Veteran's lumbar spine disability cannot be assigned under the General Rating Formula for Disease and Injuries of the Spine.  At no time has the Veteran had forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or combined range of motion not greater than 120 degrees--criteria that are required for an assignment of a 20 percent rating under the General Rating Formula.  In fact, reports of the January 2012, June 2012, and March 2016 VA examinations shows the Veteran had forward flexion to at least 80 degrees.  The examinations further showed no ankylosis of the lumbar spine.  Based on the medical evidence of record, the Board finds that the Veteran has not met the criteria for an evaluation in excess of 10 percent under the General Rating Formula for Diseases and Injuries of the Spine.

The private treatment records show that the Veteran sought treatment for low back pain.  A June 2015 private examination by Dr. J.E. notes that the Veteran continued to experience pain and flare-ups in his back on a regular basis and that he usually went to the emergency room or his primary care doctor and he was prescribed pain medication, muscle relaxers and anti-inflammatories for his back.  Physical examination revealed that forward flexion was to 90 degrees, extension to 15 degrees, right and left lateral flexion to 15 degrees or greater, right and left lateral rotation to 15 degrees.  The thoracic region revealed tenderness to palpitation, especially near the scapula region and palpable spasms.  Straight leg raise was negative bilaterally.  Motor strength and sensation was normal. 

The weight of the competent and credible evidence shows that for the period of the appeal, the Veteran had forward flexion of the thoracolumbar spine beyond 60 degrees.  There is objective evidence of localized tenderness and pain to the thoracolumbar spine on palpation but there is no evidence of abnormal gait.  There is no objective evidence of muscle spasm or guarding severe enough to cause abnormal gait or abnormal spinal contour.  The back symptoms were not severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  There is no evidence of favorable or unfavorable ankylosis of the entire thoracolumbar spine.

The rating criteria take into account functional limitations; therefore, the provisions of 38 C.F.R. §§ 4.40, 4.45, could not provide a basis for a higher evaluation.  68 Fed. Reg. 51454-5 (Aug. 27, 2003).  In any event, as discussed below, additional functional limitation warranting a higher rating has not been shown.

There is no basis for the assignment of a higher disability evaluation due to pain, weakness, fatigability, weakness or incoordination.  See 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206 -07 (1995).  The VA examination reports show that the range of motion of the thoracolumbar spine was not additionally limited by pain, weakness, impaired endurance, incoordination, or instability. Muscle strength was normal and there was no atrophy.  The Board finds the functional loss manifested by pain and localized tenderness is contemplated in the 10 percent rating.  Based on the objective medical evidence of record, there is no basis for the assignment of a higher disability evaluation due to pain, weakness, fatigability, or incoordination, and the Board finds that the assignment of a higher rating pursuant to 38 C.F.R. §§ 4.40 and 4.45 is not warranted. 

The Board finds that the service-connected thoracolumbar spine disability more nearly approximates the criteria for a 10 percent rating, and has not, for any period, more nearly approximated the criteria for a higher disability rating of 20 percent.  Thus, the preponderance of the evidence is against the assignment of a disability evaluation in excess of 10 percent for the service-connected lumbar spine disability under the rating criteria for spine disabilities.  As a 20 percent rating is not warranted, it follows that the requirements for an evaluation in excess of 20 percent are also not met.

A higher rating is not warranted under Diagnostic Code 5243 for the time period in question.  The Board notes that during his May 2015 Board hearing, the Veteran reported an incapacitating episode in 2014.  However, a review of the contemporaneous VA medical records show no diagnosis of IVDS and the January 2012, June 2012, and March 2016 VA examination reports indicated that the Veteran did not have a diagnosis of IVDS.  Thus, the Board finds that a disability evaluation in excess of 10 percent for the thoracolumbar spine disability is not warranted under Diagnostic Code 5243.  38 C.F.R. § 4.71a, Diagnostic Code 5243.

In summary, on this record, the assignment of a disability rating in excess of 10 percent for the service-connected low back strain is not warranted at any time during the period of the appeal under Diagnostic Codes 5235 to 5243.  The claim for a higher initial rating is denied.


ORDER

Entitlement to an initial rating in excess of 10 percent for thoracic sprain is denied.  



____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs