Citation Nr: 18146823 Decision Date: 11/01/18 Archive Date: 11/01/18 DOCKET NO. 17-33 906 DATE: November 1, 2018 ORDER A rating higher than 10 percent for thoracolumbar strain is denied. FINDING OF FACT Thoracolumbar strain does not result in forward flexion of 60 degrees or less, combined range of motion of 120 degrees or less, or spasms or guarding severe enough to result in an abnormal gait or spinal contour. CONCLUSION OF LAW The criteria for a rating higher than 10 percent for thoracolumbar strain have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Marine Corps from November 2010 to October 2014. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, present level of disability is the primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran is currently assigned a 10 percent rating under Diagnostic Code 5237, which is part of the General Rating Formula for Diseases and Injuries of the Spine found in 38 C.F.R. § 4.71a. Under that formula, a higher 20 percent rating is assigned when forward flexion of the thoracolumbar spine is 60 degrees or less; or when combined range of motion is 120 degrees or less; or when 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. Note (2) of the Formula states that “combined” range of motion refers to the sum of the range of forward flexion, extension, left and right flexion, and left and right rotation. Normal forward flexion of the thoracolumbar spine is 90 degrees. Normal extension, left and right flexion, and left and right rotation are each 30 degrees. Private records from June 2015 and April 2016 include range of motion testing. The Veteran also underwent a VA examination in March 2016. All three tests measured 90 degrees of forward flexion, 30 degrees of extension, 30 degrees of right lateral flexion and 30 degrees of left lateral flexion. While the private records did not include measurements of rotation, the VA examination also noted 30 degrees of left rotation and 30 degrees of right rotation. Collectively, these findings document normal range of motion in the Veteran’s thoracolumbar spine. The tests from June 2015 and April 2016 private examinations documented the presence of pain with motion. Generally, VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). However, pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain alone does not constitute function loss, but is just one fact to be considered when evaluating functional impairment). In this case, while the Veteran had normal range of motion of the thoracolumbar spine, he was still awarded a 10 percent rating, which is consistent with the provisions of 38 C.F.R. § 4.59 (the intent of the rating schedule is to recognize painful joints as entitled to at least the minimum compensable rating). In addition, the General Rating Formula for Diseases and Injuries of the Spine specifically states that its criteria are to be applied “with or without symptoms such as pain.” Therefore, the presence of pain with range of motion testing has been adequately addressed through the assigned 10 percent rating. The Board also recognizes that the Veteran reported experiencing flare-ups during his March 2016 VA examination. However, per his report, flare-ups resulted in increased pain and decreased endurance rather than any predictable change in range of motion. In sum, there is no indication in the record that the Veteran’s thoracolumbar strain results in forward flexion of 60 degrees or less, combined range of motion of 120 degrees or less, or functional loss due to pain or flare-ups that might otherwise result in similar levels of impairment. In addition, although spasms and/or tenderness were documented in the private treatment records and VA examination report, the March 2016 VA examiner specifically stated that there was no associated abnormal gait or abnormal spinal contour. Therefore, the criteria for a higher 20 percent rating have not been met. The General Rating Formula also provides that any neurologic abnormalities associated with a spinal condition may be separately rated. While the Veteran’s June 2016 and April 2016 private treatment records document positive bilateral lumbar nerve root compression tests, neurological findings (motor strength, reflexes and sensation) in the bilateral lower extremities were normal. The March 2016 VA examination also documented normal findings, and the examiner specifically stated that there were no signs or symptoms of radiculopathy present. The record does not reflect any complaints of radicular pain outside of the compression tests performed by the private chiropractor, and therefore separate ratings for lower extremity radiculopathy are not warranted. Finally, spine disabilities may alternatively be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, also found in 38 C.F.R. § 4.71a. However, Note (1) of this Formula defines an incapacitating episode as a period of acute signs and symptoms that requires bed rest prescribed by a physician. The evidence in this case does not show that the Veteran was ever prescribed bed rest, and therefore a rating under this Formula is not appropriate. DELYVONNE M. WHITEHEAD Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Shamil Patel, Counsel