Citation Nr: 1808277 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 12-06 008 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a disability evaluation in excess of 10 percent prior to October 30, 2015, and in excess of 20 percent thereafter, for thoracic spine degenerative changes with compression deformities and lumbar spine strain (hereinafter thoracolumbar spine disability). REPRESENTATION Veteran represented by: Karl A. Kazmierczak, Esq. ATTORNEY FOR THE BOARD R. I. Sims, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1989 to April 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina that granted a 10 percent disability evaluation for the Veteran's thoracolumbar spine disability. The Veteran's thoracolumbar spine disability was initially evaluated as noncompensable upon his separation from service. Upon reconsideration, the Veteran was assigned a 10 percent disability evaluation, effective May 2009. During the pendency of this appeal, the Veteran was assigned a 20 percent disability evaluation, effective October 2015. This appeal has previously been before the Board, most recently in July 2015, when it was remanded for a VA examination and medical opinion. The Board finds that its remand instructions have been substantially complied with, and the Board will proceed in adjudicating the Veteran's claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that when the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). FINDINGS OF FACT 1. The Veteran's back disability has caused an abnormal spinal contour, kyphosis, throughout the course of his appeal. 2. The Veteran's back disability has not caused forward flexion to be functionally limited to 30 degrees or less, has not required prescribed bed rest, and has not resulted in spinal ankylosis. CONCLUSION OF LAW Criteria for a 20 rating, but no higher, for a back disability have been met throughout the course of the appeal. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, Diagnostic Code (DC) 5237 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. With respect to the duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records, VA treatment records, and private treatment records have been obtained, to the extent available. Additionally, the Veteran presented testimony at a videoconference hearing before the undersigned Veterans Law Judge. The Veteran was afforded four VA examinations in connection with his claim, and neither the Veteran, nor his representative objected to the adequacy of the examinations. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). The Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, that the record includes adequate, competent evidence to allow the Board to decide this matter, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. II. Increased Rating The Veteran asserts that a 30 percent or higher disability evaluation would be more appropriate because his thoracolumbar spine disability causes him significant pain and limitation daily for one third of the day. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the several grades of the disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 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 appellant working or seeking work. 38 C.F.R. § 4.2. 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. Spine disabilities are evaluated under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined. 38 C.F.R § 4.71a, Diagnostic Codes 5237 and 5243 (2017). The General Rating Formula for Diseases and Injuries of the Spine rates thoracolumbar spine disabilities as follows: 10 percent: forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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. 20 percent: 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. 40 percent: Forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. 50 percent: Unfavorable ankylosis of the entire thoracolumbar spine. 100 percent: Unfavorable ankylosis of the entire spine. 38 C.F.R § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2017). "Ankylosis" is immobility and consolidation of a joint due to a disease, injury, or surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992). The Formula for Rating IVDS Based on Incapacitating Episodes rates lumbar spine disabilities as follows, in pertinent part: 10 percent: Incapacitating episodes having a total duration of at least one week but fewer than two weeks during the past 12 months. 20 percent: Incapacitating episodes having a total duration of at least two weeks but fewer than four weeks during the past 12 months. 40 percent: Incapacitating episodes having a total duration of at least four weeks but fewer than six weeks during the past 12 months. 60 percent: Incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R § 4.71a, Diagnostic Code 5243 (2016). 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. In this case, there is no allegation that the Veteran has ever been prescribed bed rest to treat his service connected back disability. As such, the Board will consider whether a higher rating is warranted under the General Rating Formula for Diseases and Injuries of the Spine. The Veteran is currently rated at 10 percent for his back prior to October 2015, and at 20 percent thereafter. Reviewing the Veteran's records, it is noted that he was found to have kyphosis on imaging while still in service. His 2015 VA examination indicated that the Veteran did in fact have either guarding or muscle spasms that were of sufficient severity to result in an abnormal spinal contour, namely kyphosis. While an earlier VA examination did not reach the same conclusion, the fact remains that the Veteran was in fact showing kyphosis both in service and on imaging throughout the course of his appeal. As such, a 20 percent rating is warranted throughout the span of the appeal (and in fact back to the day after separation from service as the Veteran's claim was received within a year of separation.). The Board will now consider whether a rating in excess of 20 percent is warranted at any time. A schedular rating in excess of 20 percent may only be awarded by showing spinal ankylosis, by showing neurologic impairment, or by showing forward flexion functionally limited to 30 degrees or less. As an initial point there is simply no allegation that the Veteran has spinal ankylosis at this time. As such, this avenue is foreclosed. Turning to range of motion, a January 2009 VA examination is of record at which the Veteran reported pain in his thoracolumbar spine, mainly when sitting at his desk. Range of motion (ROM) testing showed 90 degrees of forward flexion, 45 degrees of extension, 45 degrees of lateral bending, and 80 degrees of rotation. Repetitive motion testing revealed no increase in pain, fatigue, weakness, lack of endurance, or incoordination. An April 2010 VA examination is of record. The Veteran reported persistent pain in his back rated as 4 to 5 out of 10; occasionally up to 9 out of 10. The examiner noted that the Veteran's thoracolumbar spine symptoms were largely unchanged, but were persistent, bothering the Veteran daily with moderate amounts of back pain. ROM was 90 degrees of flexion, 30 degrees of extension, 30 degrees of lateral bending, and 30 degrees of rotation. Repetitive motion testing revealed no increase in pain, fatigue, weakness, lack of endurance, or incoordination. A September 2013 VA examination is of record. ROM showed 90 degrees of flexion, 15 degrees of extension, 30 degrees of right lateral flexion, and 20 degrees of left lateral flexion. Repetitive motion testing revealed 90 degrees of forward flexion, 20 degrees of extension, 30 degrees of right lateral flexion, 25 degrees of left lateral flexion, 30 degrees of right lateral rotation, and 30 degrees of left lateral rotation. Additional limitation of motion and functional loss were noted with repetitive motion testing with contributing factors of less movement than normal, pain on movement, and interference with sitting, standing, and/or weight-bearing. An undated letter, received March 2015, from Dr. Dooley states the Veteran's chief complaint is thoracolumbar pain. Dr. Dooley reported July 2014 examination findings to include, 15 to 25 degrees of extension, which was considered greatly reduced, with nearly zero trunk rotation. However, the Veteran's forward flexion was not described. At an October 2015 VA examination, the Veteran demonstrated 50 degrees of forward flexion, 20 degrees of extension, 25 degrees of right lateral flexion, 25 degrees of left lateral flexion, 20 degrees of right lateral rotation, and 25 degrees of left lateral rotation. Pain was noted on examination and was noted to cause functional loss in all ranges of motion. Repetitive motion testing revealed additional functional loss due to pain, fatigue, weakness, and lack of endurance. ROM following repetitive motion testing was 35 degrees of forward flexion, 10 degrees of extension, 15 degrees of right lateral flexion, 15 degrees of left lateral flexion, 10 degrees of right lateral rotation, 15 degrees of left lateral rotation. 2016 treatment records indicate that the Veteran received trigger point injections. In July, his thoracic ROM was full without crepitus or deformity. There was mild tenderness to palpation without spasms. In August, the Veteran was noted to experience frequent pain, specifically with driving, standing, walking, and lifting. He was able to participate in some recreation activities. He was also assessed with 41 degrees of lumbodorsal flexion and 21 degrees of lumbodorsal extension. A February 2017 letter from Dr. Dooley is of record. He indicates that the Veteran experiences many limitations that were experienced in 2008 (of note, this assertion was factored in in awarding the 20 percent rating back to separation from service). In addition, Dr. Dooley states that as of January 2017, the Veteran "has lost a lot of thoracic extension due to the chronicity of sustained injuries, which has contributed to his increasing kyphosis in his thoracic spine." Specifically, the Veteran was noted to experience a significant decrease in normal range of motion, 44 degrees of lumbodorsal flexion, 20 degrees of lumbodorsal extension, and 15 degrees of thoracic extension. As noted, the Veteran's forward flexion has consistently exceeded 30 degrees throughout the course of his appeal on numerous range of motion tests. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board acknowledges the Veteran's assertions that he experiences daily pain, reduced activity levels, and physical limitations. The Veteran has consistently reported such symptoms and limitations. The Veteran also submitted several statements related to his claim. Multiple buddy statements attest to the back pain the Veteran experiences and the difficulties he has with sitting, walking, and standing. In February 2015, the Veteran's spouse noted that his back was a daily factor and hurts him regularly. At times, she has to push the Veteran out of bed and help him stretch. She noted that he is constantly stretching and popping his chest. She noted he has limited movements of twisting, turning, and lifting; is unable to lift more than 10 to 15 pounds; unable to run without pain; and is unable to really sit, preferring to kneel to minimize daily pain. Lay people are competent to report what is observed, and these statements by the Veteran, his friends and his family are found to be both competent and credible. See Layno v. Brown, 6 Vet. App. 465 (1994). However, while the Veteran experiences pain in his back, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011) (emphasis added). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The evidence of record indicates that the Veteran has consistently reported back pain, decreased ROM, and physical therapy. However, despite repetitive motion testing on multiple occasions, the Veteran's pain and other functional limiters were not shown to reduce his forward flexion to such a degree as to warrant a higher rating. Testing conducted during the course of this appeal has not shown that motion has been functionally limited by repetitive motion or by factors such as pain. However, even at its most restricted, repetitive motion only reduced the Veteran's forward flexion to 35 degrees at the 2015 VA examination. This still exceeds the 30 degree limitation of motion required for a rating in excess of 20 percent. Further, while the Veteran has reported pain and discomfort with walking, standing, sitting, and driving for extended time, these limitations are accounted for in the Veteran's currently assigned disability evaluation. As such, the Board does not find that the Veteran's range of motion is so functionally limited so as to warrant a rating in excess of 20 percent. VA regulations require the consideration of any objective neurologic impairments caused by a back disability. However, here, it has not been shown that the Veteran's back disability has caused any neurologic impairment. For example, a June 2009 treatment note indicates the Veteran did not experience radicular symptoms related to his thoracolumbar spine. A September 2013 VA examination is of record. There was no indication that the Veteran experienced radiculopathy. At an October 2015 VA examination no radiculopathy or neurologic abnormalities were found. During his March 2015 hearing, the Veteran testified he experiences flare-ups of his back condition approximately three to four times a year. Additionally, there are times when he is unable to move his back for a few hours at time. The Veteran reported experiencing pain daily, and using treatment such as Motrin, a TENS unit, and back roller, in addition to chiropractic treatment. The Board is sympathetic to the Veteran's claim, and notes that he receives a compensable rating in an effort to account for such symptomatology. The Board has attempted to take these factors into account, noting his pain with repetitive motion testing and observing that muscle spasms caused an abnormal spinal contour. As described, a 20 percent rating, but no higher, is warranted throughout the course of the Veteran's appeal for his back disability; and to this extent, the Veteran's claim is granted. ORDER A 20 percent rating for a back disability is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs