Citation Nr: 18157890 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 16-52 639 DATE: December 13, 2018 ORDER Entitlement to an increased rating for degenerative changes, thoracic spine, currently evaluated as 10 percent disabling is denied. Entitlement to an increased evaluation for lumbosacral strain currently evaluated at 20 percent disabling is denied. FINDING OF FACT 1. The lumbar spine and thoracic spine are separately rated under the prior criteria. 2. The 10 percent evaluation is the maximum evaluation for the thoracic spine based upon limited motion and limited function under the old criteria. 3. The remaining functional use of the lumbar spine and the thorco-lumbar spine is better than 30 degrees of flexion. 4. Combining the thoracic spine and lumbar spine disabilities would result in a decreased evaluation. CONCLUSIONS OF LAW 1. Degenerative changes, thoracic spine, are no more than 10 percent disabling. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5291, 5003-5242. 2. Residuals of lumbar strain are no more than 20 percent disabling. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5295, 5003-5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from January 1990 to August 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A (2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2017), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The Board finds VA has complied with its duty to assist the Veteran in the development of the claims decided herein. In this respect, the Veteran’s service treatment records (STRs) have been obtained. Additionally, all available post-service medical evidence identified by the Veteran has been obtained. The Veteran was afforded an opportunity for a hearing before a Decision Review Officer or before the Board, but declined to do so. Neither the Veteran nor his representative have identified any outstanding, existing evidence that could be obtained to substantiate the claims; the Board is also unaware of any such evidence. Therefore, the Board is satisfied that VA has complied with its duty to assist the Veteran in the development of the claims decided herein. Accordingly, the Board will address the merits of the Veteran’s claims. Increased Rating Legal Criteria Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In both initial rating claims and normal increased rating claims, the Board must discuss whether “staged ratings” are warranted, and if not, why not. See generally Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise the lower rating will be assigned. See 38 C.F.R. § 4.7. A Veteran may not be compensated twice for the same symptomatology as “such a result would over compensate the claimant for the actual impairment of his earning capacity.” Brady v. Brown, 4 Vet. App. 203, 206 (1993). Accordingly, 38 C.F.R. § 4.14 (2016) prohibits “pyramiding” - or the assignment of multiple disability ratings for more than one service-connected disability when the symptoms of each service-connected disability duplicate or overlap with the symptoms of another service-connected disability. The criteria for spine disorders were amended in September 2002 and again in September 2003. See 67 Fed. Reg. 54,345-54,349 (Aug. 22, 2002); 68 Fed. Reg. 51,454 (Aug. 27, 2003). Currently, the thoracic and lumbar portions of the spine are rated together without entitlement to separate evaluations for the findings presented. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range-of-motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is provided for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range-of-motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 30 percent disability rating is provided for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is provided for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that 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) (See also Plate V) provides that, for VA compensation purposes, normal forward flexion of the lumbar 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 lumbar 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) provides that, 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) instructs to round each range-of-motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire lumbar 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. Under the IVDS Rating Formula (Diagnostic Code 5243), a 10 percent disability rating is assigned with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent disability rating is assigned with 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 intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2) provides that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment should be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. When rating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of the record in a case before the Secretary with respect to the benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. At 54). Analysis At the outset, the Board notes that it has reviewed all the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380–81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Thoracic Spine The Veteran generally contends that an increased rating for his thoracic spine (currently evaluated at 10 percent disabling) is warranted. Prior to the change in regulations, the thoracic spine could be rated separately. However, in the absence of ankylosis, the maximum evaluation for limited motion of the thoracic spine was 10 percent. Since the maximum evaluation for the thoracic spine was assigned and there is no basis to assigned a higher evaluation, unless the disorder is readjudicated as part of the thoraco-lumbar spine. Clearly, this is not to his advantage because if the disorders were rated as a single disability, the combined evaluation would be reduced. We shall further explain below. Lumbar Spine or Thoraco-lumbar Spine The current evaluation contemplates pain on motion and is consistence with limitation of motion that is better than 30 degrees. In order to warrant a higher evaluation, the lumbar spine and thoracic spine would have to be rated together as a single disability. In addition, there would need to be the functional equivalent of limitation of flexion to 30 degrees or less. In April 2015 the Veteran underwent a VA Back (Thoracolumbar Spine) examination. The Veteran was diagnosed with chronic thoracic degenerative changes, chronic lumbar strain, and chronic degenerative disk disease (DDD) and degenerative joint disease (DJD) of the lumbar spine. The DDD and DJD were found to be unrelated to the Veteran’s service-connected disabilities. During the examination the Veteran reported flare-ups that occur daily lasting 2-3 hours that causes him to avoid bending, twisting, lifting, pushing, or pulling; but he denied any specific loss of function. The Veteran denied any issues with weight bearing, and noted that he notices occasional numbness in his legs during flares but no other radicular symptoms. Initial range of motion testing showed forward flexion to 70 degrees (normal endpoint is 90 degrees); extension to 20 degrees (normal endpoint is 30 degrees); right lateral flexion to 20 degrees (normal endpoint is 30 degrees); left lateral flexion to 20 degrees (normal endpoint is 30 degrees); right lateral rotation to 25 degrees (normal endpoint is 30 degrees); and left lateral rotation to 25 degrees (normal endpoint is 30). Pain was observed on the examination for each range of motion, however, the examiner noted that it did not result in, or cause any, functional loss. The Veteran was able to perform repetitive use testing with at least three repetitions and no additional limitation in range of motion of the thoracolumbar spine following repetitive use testing. In addition, there was no functional loss and/or functional impairment of the thoracolumbar spine. All muscle strength tests, all reflex exams, and all sensory exams were normal. There was no ankylosis of the Veteran’s spine. The examiner found that the Veteran had intervertebral disc syndrome (IVDS) though the examiner noted that there had been no signs or symptoms that required bed rest prescribed by a physician. Additionally, the examiner noted that the Veteran’s complaints of intermittent numbness in his legs would be solely due to the non-service-connected DDD/DJD of the lumbar spine. The Veteran’s VA treatment records contain constant reports and treatment of cervical, thoracic, and lumbar back pain. In July 2014, the Veteran underwent an MRI of his lumbar spine and the examining physician noted that there was early disc degeneration from the L2-L3 through L4-L5 vertebrae but no significant disc height loss, no disc herniations, and no significant stenosis. In the Veteran’s May 2015 private treatment records from Bellin, he reported thoracic and lumbar spine pain. The Veteran also reported that if he stands too long his thighs and hands go numb. The Veteran noted that sitting, coughing, bending, sneezing, lifting, standing, twisting, walking, driving, and lying down made his pain worse. Additionally, the Veteran noted that medications he has tried in the past to treat his pain had not helped him. The examiner noted that the Veteran experiences diffuse pain throughout the lower cervical, thoracic, and lumbar spine. The examiner also noted that the Veteran had a “good range of motion in flexion, extension, bilateral rotation, and bilateral sidebending” though not specific range of motion measurements are given. With regard to orthopedic manifestations of the thoracolumbar spine with consideration of functional loss, the evidence of record does not reveal unfavorable ankylosis of the entire spine warranting a higher 100 percent evaluation, or unfavorable ankylosis of the entire thoracolumbar spine warranting a higher 50 percent evaluation, or favorable ankylosis of the entire thoracolumbar spine warranting a higher 40 percent evaluation, or forward flexion of the thoracolumbar spine 30 degrees or less. 38 C.F.R. § 4.71a. In addition, the Veteran has not been shown to have forward flexion of the thoracolumbar spine to 30 degrees or less. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. That is, even with consideration of pain, functional loss, repetition x 3, and flare-ups, limitation of flexion was 70 degrees (April 2015 VA spine examination) and noted as “good range of motion in flexion” (May 2015 Bellin treatment records). Neither of these range of motion findings supports a higher 40 percent rating for the thoracolumbar spine. Lastly, there is no evidence that the Veteran has suffered from incapacitating of 4 to 6 weeks or greater in order to qualify for a higher disability rating under Diagnostic Code 5243. With regard to functional loss, as discussed above, the Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca and Mitchell. In light of the above evidence, repetitive motion and pain were considered, but the thoracolumbar spine was not additionally limited to the point of demonstrating range of motion limited to 30 degrees or less. VA and private treatment records document thoracolumbar pain and tenderness, but fail to reveal any evidence of thoracolumbar spine ankylosis or limitation of motion limited to 30 degrees or less. For these reasons, the Board finds that the preponderance of the evidence is against the appeal for an increased disability rating in excess of 20 percent for the lumbar and thoracic spine disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.71a, General Rating Formula for Diseases and Injuries of the Spine. As noted above, the Rating Schedule for these conditions have changed with the lumbar and   thoracic portions of the spine now rated together without entitlement to separate evaluations for findings so presented. However, a change in the VA regulations, standing alone, cannot serve as the basis for a reduced evaluation. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Gresham