Citation Nr: 19188167 Decision Date: 11/21/19 Archive Date: 11/21/19 DOCKET NO. 16-46 738A DATE: November 21, 2019 ORDER A disability rating of 60 percent for a T12 fracture with fusion is granted. FINDINGS OF FACT 1. The Veteran’s T12 fracture with fusion is manifested by incapacitating episodes of greater than six weeks in the past twelve months. 2. The Veteran’s T12 fracture with fusion is not manifested by unfavorable ankylosis of the entire spine. CONCLUSION OF LAW The criteria for a disability rating of 60 percent, but no higher, for a T12 fracture with fusion are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5242, 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service in the Army from May 1992 to March 2001, December 2001 to December 2002, July 2004 to July 2005, October 2006 to February 2008, July 2010 to July 2011, and August 2017 to August 2018. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a June 2014 rating decision. The Board acknowledges that the Veteran submitted a Rapid Appeals Modernization Program (RAMP) opt-in election form that was received by VA on July 9, 2018. However, the Veterans Benefits Administration (VBA) determined that the appeal did not qualify for processing under RAMP, as the issue was reactivated by the RO based on a timely Substantive Appeal. See February 2019 notification letter. Accordingly, the Board will undertake appellate review of the case in the legacy review system. The Veteran contends that an increased rating is warranted for his service-connected spinal injury. See September 2013 claim. He contends that his condition has progressively deteriorated and he has experienced considerable pain from his back injury in service. He notes that his span of movement is far less and his daily activities are inhibited, and he reports incapacitating events four to six times per month, or 48 to 72 days per year. See April 2014 statement; December 2014 notice of disagreement; December 2014 statement. The Veteran contends that a 60 percent rating is warranted for his condition under the formula for intervertebral disc syndrome (IVDS) based on his incapacitating episodes, as this rating more accurately reflects the negative impact on his life and the prescribed bed rest by his private physician. See February 2016 correspondence; September 2016 VA Form 9. Disability evaluations are determined by the application of a schedule of ratings, which 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. The percentage ratings in VA’s Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Although the evaluation of a service-connected disability requires a review of a veteran’s medical history with regard to that disorder, the primary concern in a claim for an increased evaluation for a service-connected disability is the present level of disability. VA is directed to review the recorded history of a disability in order to make a more accurate evaluation; however, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA has a duty to consider the possibility of assigning staged ratings in all claims for increase. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s T12 fracture with fusion claimed as a spinal injury is currently rated as 20 percent disabling under 38 C.F.R. § 4.71a, DC 5242. Spine disabilities are to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine (General Formula) or under the Formula for Rating Intervertebral Disc Syndrome based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 6. Under the general rating formula for diseases and injuries of the spine, a 20 percent disability rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasm or guarding is 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 when forward flexion of the thoracolumbar spine is 30 degrees or less; or, when there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating requires unfavorable ankylosis of the entire spine. The notes listed below apply to the General Rating Formula for Diseases and Injuries of the Spine: Note (1) Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 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 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 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 (0 degrees) always represents favorable ankylosis. Under the Formula for Rating IVDS Based on Incapacitating Episodes, a 60 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. For purposes of evaluation under DC 5243 (IVDS), 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. 38 C.F.R. § 4.71a, The Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). If intervertebral disc syndrome is presented in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment 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. 38 C.F.R. § 4.71a, The Spine, Formula for Rating IVDS Based on Incapacitating Episodes, Note (2). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the U.S. Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. While the evidence does not show a diagnosis of IVDS, the Board finds that the Veteran’s symptoms associated with T12 fracture with fusion claimed as a spinal injury are most analogous to the symptoms described under the IVDS Formula and that this formula results in a higher evaluation for the Veteran. 38 C.F.R. § 4.20. The Veteran has been diagnosed with spinal fusion and vertebral fracture. See May 2019 back (thoracolumbar spine) disability benefits questionnaire (DBQ); May 2014 VA examination. The Veteran and his wife contend that the Veteran’s symptoms have been manifested by incapacitating episodes of greater than six weeks in the past twelve months. See December 2014 notice of disagreement; January 2015 statement from the Veteran’s wife. Moreover, a February 2016 private treatment record shows that the Veteran was prescribed bed rest by his physician. The private physician stated that the Veteran’s chronic back pain incapacitates the Veteran at times. The physician stated that these incidents can occur as often as six times per month and require bed rest. The physician indicated that bed rest is essential in relieving the pain during these incapacitating events. Accordingly, the treating physician prescribed “Directed bed rest. The [Veteran] must not further aggravate a flare up during the time of incapacitation and should remain in bed with little to no physical activity.” The Veteran has reported incapacitating episodes four to six times per month during the entire appeal period. See April 2014 statement; December 2014 notice of disagreement; December 2014 statement. The Veteran’s spouse has also reported that the Veteran is fully incapacitated 70-75 days per year (i.e., over six weeks) due to his back disability. See December 2014 statement. Thus, resolving doubt in favor of the Veteran, the Board finds that the Veteran’s back disability is manifested by incapacitating episodes having a total duration of at least six weeks during the past 12 months. A rating of 60 percent is warranted for the Veteran’s T12 fracture with fusion under the IVDS Formula, DC 5243 for the entire appeal period. 38 C.F.R. § 4.71a. A 60 percent rating is the highest rating available under the IVDS Formula, DC 5243. A rating in excess of 60 percent is not warranted under the General Rating Formula for Diseases and Injuries of the Spine, as there is no evidence of unfavorable ankylosis of the entire spine, as required for a higher evaluation of 100 percent. See 38 C.F.R. § 4.71a, DCs 5235-5242; May 2019 DBQ; May 2014 VA examination. The Board finds that the preponderance of the evidence is against a rating in excess of 60 percent for T12 fracture with fusion. The Board acknowledges the Veteran’s and his spouse’s lay reports of symptoms and that there was functional loss due to pain. However, even considering the lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the Veteran’s and his spouse’s lay statements would not result in symptoms more nearly approximating unfavorable ankylosis of the entire spine. Regarding neurological impairment, the Veteran has already been granted service connection for radiculopathy of the bilateral lower extremities, and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 60 percent for T12 fracture with fusion. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). SHAUNA M. WATKINS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Samuelson, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.