Citation Nr: 18147857 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 18-43 264 DATE: November 6, 2018 ORDER A rating in excess of 20 percent for fracture, compression type, T4 and T5V is denied. FINDING OF FACT For the entire appeal period, the Veteran’s fracture, compression type, T4 and T5V is manifested by forward flexion greater than 30 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis, incapacitating episodes due to intervertebral disc syndrome (IVDS), or associated objective neurologic abnormalities. CONCLUSION OF LAW The criteria for a rating in excess of 20 for fracture, compression type, T4 and T5V have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1954 to September 1957. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to a rating in excess of 20 percent for fracture, compression type, T4 and T5V. The Veteran contends that he is entitled to an increased rating for his service-connected back disability because it is more severe than as reflected by the currently assigned rating. The appeal period before the Board stems from the Veteran’s November 2016 claim for an increased rating for his back disability, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that “[t]he 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.” Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The Veteran’s back disability has been rated as 20 percent pursuant to DC 5237 for the entire appeal period. The Board notes that such disability was also previously rated as 20 percent disabling pursuant to DC 5285 since September 19, 1957, which is a period greater than 20 years and, consequently, such rating is protected. 38 U.S.C. § 110; 38 C.F.R. § 3.951(b). DC 5237 provides that such disability is evaluated under the General Rating Formula for Disease and Injuries of the Spine (General Rating Formula). In this regard, ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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. Such provides for a 20 percent rating where there is 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Finally, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Note (1): Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): For VA compensation purposes, 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. 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 cervical spine is 340 degrees and 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. 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. IVDS may be evaluated under either the General Rating Formula or under the IVDS Formula, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). In this regard, the IVDS Rating Formula provides that a 20 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. The Board finds that a rating in excess of 20 percent for the Veteran’s back disability under the General Rating Formula is not warranted. In this regard, the record does not show that his range of motion was limited to the extent necessary to warrant a higher rating or that he had ankylosis at any point pertinent to the appeal period. In this regard, in March 2017, the Veteran underwent a VA examination in order to assess the current nature and severity of his back disability. At such time, he reported that he could not stand or walk for long periods of time, but denied flare-ups. The Veteran’s range of motion revealed flexion limited to 70 degrees, extension limited to 30 degrees, and both right and left lateral rotation and flexion limited to 20 degrees. He was noted to have pain on motion for all ranges except extension, but his range of motion of motion itself did not contribute to functional loss and the pain noted on the examination did not result in/cause functional loss. The examiner also noted that the Veteran did not have guarding or muscle spasms, nor was there ankylosis. Additionally, the Board notes that the examiner determined that she was unable to say without resorting to mere speculation whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over a period of time or during a flare-up as the Veteran was not examined immediately after repetitive use or during a flare-up. However, as noted above, the Veteran did not report that he had flare-ups and he was able to perform repetitive-use testing with at least three repetitions without additional loss of function or range of motion after such repetitions. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Furthermore, with regard to Correia, supra, the examiner noted that there was pain in non-weight bearing, but no evidence of pain with weight-bearing of the lumbar spine, and that passive range of motion values were the same as on active range of motion with pain in the same areas, as well. Additionally, as there is no opposite undamaged joint, testing in such regard is not possible. Also of record are the Veteran’s VA treatment records dated during the course of the appeal; however, do not reflect the findings required for a rating in excess of 20 percent. Therefore, based on the foregoing, the Veteran’s back disability did not result in forward flexion limited to 30 degrees or less, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive. motion and/or flare-ups. Furthermore, the record does not show ankylosis. Accordingly, a rating in excess of 20 percent for the Veteran’s back disability under the General Rating Formula is not warranted. Furthermore, the Board has also considered whether additional separate ratings for associated objective neurological abnormalities are warranted pursuant to Note (1) of the General Rating Formula. However, while the Veteran has reported numbness in his legs, the objective evidence of record, including the March 2017 VA examination, fails to show that he has neurological abnormalities associated with his back disability. The Board also finds that the record does not show, and the Veteran does not contend, that he ever had an incapacitating episode of IVDS that required physician prescribed bed rest. Thus, the IVDS Formula would not allow for a higher rating at any point pertinent to the appeal period. Moreover, the Board has considered whether staged ratings under Hart, supra, are appropriate for the Veteran’s service-connected back disability; however, the Board finds that his symptomatology has been stable throughout the time period on appeal. Therefore, assigning staged ratings for such disability is not warranted. Further, neither the Veteran nor his representative has raised any other issues nor have any other issues been reasonably raised by the record in connection with his increased rating claim. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In sum, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the Veteran’s fracture, compression type, T4 and T5V. Therefore, the benefit of the doubt doctrine is not applicable to the instant claim and such claim is denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Clark, Associate Counsel