Citation Nr: 18154266 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-49 323 DATE: November 29, 2018 ORDER Entitlement to an evaluation in excess of 20 percent for degenerative joint disease (DJD) thoracic spine with spinal stenosis and thoracic scoliosis, is denied. FINDING OF FACT Throughout the appellate period, DJD thoracic spine with spinal stenosis and thoracic scoliosis has been manifested by no worse than limitation in flexion to 50 degrees and guarding that results in an abnormal gait or abnormal spinal contour. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent from May 16, 2016 for DJD thoracic spine with spinal stenosis and thoracic scoliosis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service with the United States Air Force from December 1993 to June 2001. This matter come before the Board on Veterans’ Appeals (Board) on appeal of July 2016 rating decision of the Department of Veteran’s Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran contends that the 20 percent disability rating that is assigned currently to her service-connected DJD thoracic spine with spinal stenosis and thoracic scoliosis does not contemplate the severity of her respective symptoms. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however, this practice is known as “staged” ratings.” Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.10; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Under the General Rating Formula for Diseases and Injuries of the Spine applied by Codes 5237 and 5242, the disability is evaluated 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 20 percent rating requires thoracolumbar spine forward flexion 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 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the thoracolumbar spine warrants a 50 percent evaluation, and unfavorable ankylosis of the entire spine is rated 100 percent disabling. 38 C.F.R. § 4.71a. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees. 38 C.F.R. § 4.71a, Code 5237, Note 2. Further, all measured ranges of motion should be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, Code 5237, Note 4. Ankylosis is a condition in which an entire spinal segment is immobile and fixed in position. Unfavorable ankylosis exists where the fixation is in flexion or extension, and the ankylosis results in one 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; and/or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) is considered favorable ankylosis. 38 C.F.R. § 4.71a, Code 5239, Note 5. In evaluating any disability on the basis of limitation of motion, VA must consider the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011). Applicable to the period on appeal, the Veteran and her representative have reported that the Veteran’s experiences pain in the thoracic region. Further, they convey that the spine disability has functional impacts, to include an inability to twist and attend to bodily hygiene; perform household chores; or sit, stand, or lie down for more than a few minutes at a time. VA and private treatment records reflect these on-going complaints. In June 2016, the Veteran was afforded a VA spine examination. She complained of constant sharp and aching pain in the back that was worse with any activity. Forward flexion was to 50 degrees, extension was to 15 degrees, right lateral flexion to 15 degrees, and left lateral flexion was to 20 degrees. Movement was painful. There was pain with weight bearing, and tenderness with palpation. Repetitive motion did not cause additional functional impairment. The Veteran’s complaints of increased impairment on flare-ups were neither consistent nor inconsistent with findings. The measured range of motion, to include the limitation of function caused by pain, falls squarely into the criteria for a 20 percent disability rating. The functional impairments described by the Veteran, affecting even the most minor and everyday tasks are simply not corroborated by the objective measurements and third-party observations. The preponderance of the evidence is against the Veteran’s claims and there are no doubts to be resolved. See 38 U.S.C. § 5.107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. J. Komins, Associate Counsel