Citation Nr: 18155586 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 17-45 352 DATE: December 4, 2018 ORDER Entitlement to an increased rating greater than 20 percent for service-connected lumbosacral strain, degenerative disc disease and arthritis of the thoracolumbar spine is denied. FINDING OF FACT Throughout the period on appeal, the Veteran’s thoracolumbar spine disability has manifested as forward flexion limited to at most to 45 degrees with pain, extension limited to 20 degrees with pain, left and right lateral flexion limited to at most 15 degrees with pain, and left and right lateral rotation limited to at most 15 degrees with pain, without evidence of ankylosis. CONCLUSION OF LAW The criteria for entitlement to an increased rating greater than 20 percent for service-connected lumbosacral strain, degenerative disc disease and arthritis of the thoracolumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2011 through May 2011 and from November 2011 through December 2012. In September 2017, the Regional Office (RO) granted two separate 10 percent ratings for bilateral radiculopathy, secondary to the Veteran’s thoracolumbar spine disability, effective April 26, 2016. In its rating decision, the RO noted that the separate ratings for radiculopathy were secondary to the present appeal, and did not address them in the supplemental statement of the case in September 2017. The Veteran did not note disagreement with the separate ratings and the RO’s actions have made it clear to him that the rating for his radiculopathy is not considered part of the pending appeal. Accordingly, these issues are not before the Board at this time. The Board notes that in an April 2018 rating decision, the RO denied entitlement to service connection for obstructive sleep apnea. The Veteran filed a timely notice of disagreement in May 2018, and the RO has not yet issued a statement of the case regarding these claims. The Board acknowledges that ordinarily the issue would be remanded for issuance of a statement of the case pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). However, the electronic Veterans Appeals Control and Locator System (VACOLS) indicates that the Veteran’s notice of disagreement has been acknowledged by the RO and additional action is pending. Therefore, this situation is distinguishable from Manlincon, where a notice of disagreement had not been recognized, and remand is not necessary at this time. In November 2018, the Veteran’s representative submitted a waiver of the medical evidence received into the claims file following the most recent supplemental statement of the case. Hence, the Board may proceed with the matter. 38 C.F.R. § 20.1304. 1. Entitlement to an increased rating greater than 20 percent for service-connected lumbosacral strain, degenerative disc disease and arthritis of the thoracolumbar spine The Veteran asserts that his service-connected lumbosacral strain with degenerative disc disease and arthritis of the thoracolumbar spine warrants an increased rating greater than 20 percent. Specifically, he argues that his back pain is so severe, that sometimes he cannot stand completely straight. Initially, the Board notes that the Veteran’s service-connected lumbosacral strain with degenerative disc disease and arthritis of the thoracolumbar spine was rated as 20 percent disabling under Diagnostic Codes 5242-5243, applying to degenerative arthritis of the spine and intervertebral disc syndrome, respectively, until August 12, 2016. Effective August 13, 2016, the RO decreased the Veteran’s rating to 10 percent disabling, but his 20 percent rating was later restored in October 2016. Effective August 13, 2016, the Veteran’s lumbosacral strain with degenerative disc disease and arthritis of the thoracolumbar spine is rated as 20 percent disabling under Diagnostic Code 5237, applying to lumbosacral or cervical strains. However, as all spine disabilities are rated under the General Rating Formula for Diseases and Injuries of the Spine, the change in Diagnostic Code effective August 13, 2016 does not impact the Board’s analysis. To warrant a rating in excess of 20 percent for a thoracolumbar spine disability, the Veteran’s lumbosacral strain must manifest as forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. VA treatment records reflect the Veteran reported increasing back pain in April 2016. Physical evaluation reflected the Veteran’s flexion was slightly limited with significant pain. His extension, side bending, and rotation were significantly limited with pain. Light touch was intact, but his reflexes and muscle strength were slightly diminished. The Veteran again sought treatment for low back pain in May 2016. Physical examination reflected he had normal range of motion except for forward flexion, which was limited to 80 degrees secondary to pain. He also demonstrated pain at the end range of lateral bending. All neurological testing was normal. The Veteran was referred to physical therapy. In June 2016, the Veteran attended physical therapy. He reported that he decreased physical activity from six times a week to four times a week and stopped running due to his back pain. The physical therapist noted the Veteran’s gait demonstrated decreased trunk rotation and his toes pointed out bilaterally, and he used his upper extremities to stand. His posture demonstrated forward head, rounded shoulders, and kyphosis. Neurological testing results reflected slightly reduced patellar tendon reflexes bilaterally, and slightly reduced muscle strength. Range of motion testing reflected his forward flexion was limited by 50 percent (45 degrees) with pain, his lateral flexion was limited by 50 percent (15 degrees) with pain, his rotation was limited by 50 percent (15 degrees) with pain, and he had no rotation from hips. The Veteran was afforded a VA examination to evaluate his thoracolumbar spine disability in August 2016. Range of motion testing reflected the Veteran had forward flexion to 70 degrees, extension to 30 degrees, right lateral flexion to 20 degrees, left lateral flexion to 25 degrees, and lateral rotation to 40 degrees bilaterally. The examiner noted there was no evidence of pain with weight bearing or evidence of tenderness to palpation. After repetitive use testing, the Veteran’s range of motion was further limited to 25 degrees of extension and 20 degrees of left lateral flexion, with the remaining motions demonstrating no additional limitation. The examiner noted that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time, and pain, weakness, fatigability, and incoordination did not significantly limit functional ability following repetitive use over time. The Veteran described experiencing flare-ups of pain with physical exertion and stiffness after prolonged sitting, which the examiner noted were not classical flare-ups. The examiner noted that pain significantly limited functional ability during flare-ups, but any limitation could not be described in terms of range of motion because the Veteran described increased stiffness that resolved. There was no evidence of muscle spasm or guarding, and all neurological and muscle strength testing was normal. The Veteran did have a positive straight leg raise test bilaterally, but the examiner noted there was no evidence of radicular pain or signs or symptoms of radiculopathy. There was no evidence of ankylosis or intervertebral disc syndrome. The Veteran was afforded another VA examination to evaluate the severity of his thoracolumbar spine disability in April 2017. He reported his back disability had worsened and he experienced radicular symptoms. He also reported activities involving bending and twisting, weight bearing, and sitting caused additional pain, and his decreased range of motion affected his ambulation and activities requiring use of the back. Results of range of motion testing reflected the Veteran’s forward flexion was limited to 50 degrees, extension to 20 degrees, left and right lateral flexion to 30 degrees, and left and right lateral rotation to 30 degrees. The examiner noted that passive range of motion testing was not performed because it was not feasible to conduct in a safe and reasonable manner. There was evidence of pain with weight bearing, but no objective evidence of pain while in a non-weight-bearing position at rest. The Veteran experienced no additional loss of range of motion following repetitive use testing. As for the functional impact of flare-ups and repetitive use over time, the examiner noted there was insufficient evidence or objective exam findings that would provide a reliable prediction of decreased functional ability with repetitive use over a period of time or during flare-ups. Based on the available evidence and exam findings, it was not possible to predict within a reasonable degree of medical certainty any potential loss of range of motion manifested as a consequence of repetitive use over a period of time or during flare-ups without resorting to speculation. Muscle strength and neurological testing were normal, and the examiner noted a positive finding of radiculopathy bilaterally. There was no evidence of ankylosis. VA treatment records reflect the Veteran continued to report back pain and stiffness. In November 2017, a physical examination revealed mild kyphosis but no significant paraspinal tenderness. He attended a neurology consultation in December 2017, and reported episodes of shooting back pain radiating to the lateral aspects of both lower extremities, and difficulty standing completely straight after prolonged sitting. A physical examination conducted in January 2018 reflected the Veteran had full lumbar range of motion, but his pain worsened with extension, flexion, lateral flexion, and rotation. All neurological testing and muscle strength testing was normal. The Board finds that a rating in excess of 20 percent for the entire period on appeal is not warranted. There is no evidence that the Veteran’s thoracolumbar spine disability manifested as forward flexion limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine to warrant an increased 40 percent rating. VA treatment records reflect that, at most, the Veteran’s forward flexion was limited to 45 degrees with pain in June 2016. The August 2016 VA examination noted the Veteran had forward flexion to 70 degrees with pain, and his forward flexion was limited to 50 degrees with pain in April 2017. There is simply no evidence the Veteran’s forward flexion was limited to 30 degrees or less. Additionally, there is no evidence of ankylosis noted in any of his medical records, and both the August 2016 and April 2017 VA examinations noted the Veteran did not have ankylosis of the spine. The Board has considered whether the Veteran could be granted a higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The record does not reflect that the Veteran has been diagnosed with intervertebral disc syndrome or has ever been prescribed bed rest by a physician due to incapacitating episodes. While he may voluntarily choose to limit activity due to increased pain, that is not how VA defines an incapacitating episode. For this reason, the Veteran is not entitled to a higher rating using the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. In considering these rating criteria, the Board has considered functional loss due to pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). In making this determination, the Board considered the Veteran’s statements regarding her symptoms, VA examination reports, and VA treatment records. The Board certainly sympathizes with the Veteran’s statements regarding his symptoms; however, the August 2016 VA examiner considered the Veteran’s reports of pain with exertion and increased stiffness and determined the Veteran’s flare-ups resulted in stiffness that resolved and thus could not assign any additional loss of motion in terms of range of motion. As such, while the record shows low back pain with difficulty ambulating, lifting, bending, twisting, and sitting, the evidence does not show that his symptoms and flare-ups produce functional loss that is manifested by adequate evidence of disabling pathology for higher ratings. See 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Indeed, the Veteran experienced no limitation of flexion after repetitive use testing in August 2016 and no additional limitation of motion after repetitive use testing in April 2017. In light of the Veteran’s reported symptoms and the medical evidence, the Board finds that the Veteran is not entitled to a higher rating for his thoracolumbar spine disability. As mandated by 38 C.F.R. § 4.71a, Note (1), the Board considered whether the Veteran is entitled to separate ratings for associated objective neurologic abnormalities, other than service-connected radiculopathy of the right and left lower extremities. As noted above, the Veteran has already been assigned two separate 10 percent disability ratings for bilateral radiculopathy of the lower extremities, and the appropriateness of those ratings is not before the Board at this time. The Veteran has not asserted that he has any other neurological abnormalities potentially related to his thoracolumbar spine disability, and he has consistently denied any bowel or bladder impairment. (Continued on the next page)   Entitlement to an increased rating greater than 20 percent for service-connected lumbosacral strain with degenerative disc disease and arthritis of the thoracolumbar spine is not warranted. As the preponderance of the evidence is against assignment of any higher rating, the benefit-of-the doubt doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Parsons, Associate Counsel