Citation Nr: 18144369 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 17-39 575 DATE: October 24, 2018 ORDER Entitlement to a compensable evaluation for a thoracic compression fracture is granted. FINDING OF FACT The Veteran’s service-connected thoracic compression fracture has resulted in, at worst, 50 degrees flexion with no ankylosis of the thoracolumbar spine or incapacitating episodes. CONCLUSION OF LAW The criteria for a rating of 20 percent, but no higher, for a thoracic compression fracture have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from January 2002 to July 2011. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. General Rating Formula for Disease and Injuries of the Spine Spine disabilities are rated under the General Rating Formula for Diseases and Injuries of the Spine for DCs 5235 to 5243, unless DC 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or forward flexion of the cervical spine is greater than 30 degrees but not greater than 40 degrees; or when the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or when the combined range of motion of the cervical spine is greater than 170 degrees but not greater than 335 degrees; or when there is muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or where there is a vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a. A 20 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, or forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees, or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or the combined range of motion of the cervical spine is not greater than 170 degrees, or muscle spasms or guarding are severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 30 percent rating is warranted when forward flexion of the cervical spine is to 15 degrees or less, or favorable ankylosis of the entire cervical spine is present. Id. A 40 percent rating is warranted when there is unfavorable ankylosis of the entire cervical spine, or forward flexion of the thoracolumbar spine is to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine present. Id. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is warranted when there is unfavorable ankylosis of the entire spine. Id. There are also several relevant note provisions associated with Diagnostic Code 5243. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) 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. Normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 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, and the normal combined range of motion for the cervical spine is 340 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. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, Diagnostic Code 5242. Entitlement to a compensable evaluation for a thoracic compression fracture is granted. The Veteran currently has a noncompensable rating under 38 C.F.R. § 4.71a, Diagnostic Code 5237 for his service-connected thoracic compression fracture disability. In an August 2017 letter, the Veteran’s representative argues the Veteran should receive a 20 percent rating based on the medical evidence of record. The Veteran underwent a VA examination in February 2016. Initial range of motion measurements were all normal. No pain was noted. Localized tenderness was found. Repetitive-use testing showed no loss of range of motion. The examination was not conducted during a flare-up. The examiner found the examination was medically consistent with the Veteran’s statements describing functional loss during a flare-up. It was also found pain, weakness, fatigability, or incoordination did not significantly limit functional ability during a flare-up. Guarding and muscle spasms were not found. Muscle strength testing was normal. No muscle atrophy was found. Reflexes were normal. Sensory exam was normal. Straight leg raising test was negative for the right, positive for the left, which was noted to be secondary to sciatica. Radiculopathy was not found. Ankylosis was not found. Intervertebral disc syndrome and incapacitating episodes were not found. Assistive devices were not used. Pain from sitting for long periods of time was found to be a functional impact. It was noted the Veteran requested a back brace in July 2017 to help with back support and to diminish periods of debilitating back issues. The Veteran submitted private treatment reports dated August 2017. Lumbar extension was measured to 20 degrees with increased motion and moderate pain. Lumbar flexion was measured to 50 degrees with decreased motion and moderate pain. The Veteran reported severe back spasms in September 2017. In October 2017, it was noted back pain had an effect on the Veteran’s ability to exercise. The Board finds the manifestations of the Veteran’s back disability more closely approximate the criteria of the 20 percent rating. According to the August 2017 examination, the Veteran exhibited a forward flexion to 50 degrees. This finding places his disability in the 20 percent category of the general rating formula for diseases and injuries of the spine. However, the Board finds that a rating higher than 20 percent is not warranted at any time during the entire appeal period. The Veteran’s flexion is, at worst, was 50 degrees, as evidenced in the August 2017 examination report, and there is no evidence of ankylosis of the thoracolumbar spine. Therefore, a rating in excess of 20 percent is not warranted for a lumbar spine disability at any time during the appeal period. The Board has considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the Veteran’s back disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran’s symptoms are supported by pathology consistent with the now assigned 20 percent rating and no higher. In this regard, the Board observes the Veteran’s complaints of progressive, daily pain, and functional impairment. However, the medical record does not reflect ankylosis of the lumbar spine or forward flexion of the thoracolumbar spine to 30 degrees or less. Furthermore, the medical evidence does not show prescribed bed rest by a physician due to intervertebral disc syndrome. As such, a higher disability rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is not warranted. While the February 2016 VA examination documented a normal range of motion, the examination was not performed during a flare-up. The medical evidence elsewhere shows the Veteran requested a back brace in July 2017 to help with back support and to diminish periods of debilitating back issues, he reported severe back spasms in September 2017, and it was noted in October 2017 back pain had an effect on the Veteran’s ability to exercise. Accordingly, the Board will apply the benefit-of-the-doubt rule and award a 20 percent rating for the entire appeal period. The Board further notes the Rating Schedule instructs that orthopedic and neurologic manifestations of service-connected diseases and injuries of the spine are to be rated separately. Indeed, the February 2016 VA examination documented left sciatica. However, the Board notes the Veteran is already service-connected for left sciatica and popliteal radiculopathy associated with his thoracic compression fracture. In summary, the Board concludes the Veteran’s service-connected thoracic compression fracture more nearly approximate the criteria for a 20 percent rating, but a rating in excess of 20 percent is not warranted for the entire appeal period. As such, the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107 (b) has been considered. See generally Gilbert, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). J. CONNOLLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Denton, Buck