Citation Nr: 20002187 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 19-06 946 DATE: January 9, 2020 ORDER For the period prior to November 5, 2018, entitlement to a rating of 40 percent, and no higher, for thoracolumbar strain with intervertebral disc syndrome (IVDS) is granted. For the period starting November 5, 2018, entitlement to a rating in excess of 40 percent for thoracolumbar strain with IVDS is denied. REMANDED Entitlement to a compensable rating for cephalgia/occipital neuralgia is remanded. FINDINGS OF FACT 1. Prior to November 5, 2018, the Veteran’s back disability was characterized by forward flexion limited to 25 degrees. 2. Since November 5, 2018, the Veteran’s back disability has been characterized by forward flexion limited to 10 degrees. CONCLUSIONS OF LAW 1. For the period prior to November 5, 2018, the criteria for entitlement to a rating of 40 percent, and no higher, for thoracolumbar strain with IVDS have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.27, 4.40, 4.45, 4.71a, Diagnostic Code 5243 (2019). 2. For the period starting November 5, 2018, the criteria for entitlement to a rating in excess of 40 percent for thoracolumbar strain with IVDS have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.27, 4.40, 4.45, 4.71a, Diagnostic Code 5243 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1981 to August 1987 and from January 1991 to May 1991. He received the First Good Conduct Award and National Defense Service Medal. Increased Rating for Thoracolumbar Strain with IVDS The Veteran’s thoracolumbar strain with IVDS has been rated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5243. IVDS is to be 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 method results in the higher evaluation. The Veteran has not had any incapacitating episodes due to his back disability that required bed rest prescribed by a physician; accordingly, the Board will evaluate the Veteran’s disability under the criteria found under the General Rating Formula. Under the General Rating Formula for Disease and Injuries of the Spine, a 20 percent rating is assigned for 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. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. The Court has held that “staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). In this case, staged ratings for the disability on appeal have already been assigned; therefore, the Board will discuss the propriety of the ratings assigned at each stage. Prior to November 5, 2018, the Veteran’s back disability was characterized by flexion limited to 25 degrees. The Veteran underwent a VA examination in July 2016. At this time, the Veteran’s forward flexion was to 50 degrees, extension to 10, right lateral flexion to 10, left lateral flexion to 10, right lateral rotation to 10 and left lateral rotation to 10. See July 2016 VA Examination, p. 4. During flares and following repeated use over time, the examiner estimated that the Veteran’s forward flexion would be to 45 degrees, extension to 10 degrees, right lateral flexion to 10, left lateral flexion to 10, right lateral rotation to 10 and left lateral rotation to 10. The examiner noted that there was evidence of pain with weight bearing, pain to palpation, and muscle spasms. However, the muscle spasms were not severe enough to result in an abnormal gait or spinal contour. VA treatment records from this time demonstrate that the Veteran had decreased range of motion of his back and pain. See April 2018 CAPRI, pp. 1, 31, 45, 49, 53, 81, 85-86, 92; October 2018 CAPRI, pp. 1, 3, 5. In a February 2016 note, the Veteran’s private physician indicated that the Veteran’s back pain interferes with his ability to stand, sit, walk and move in general. See February 2016 Private Treatment Records, p. 2. The physician recorded the following range of motion results: forward flexion to 25 degrees, extension to 0, right lateral rotation to 15, left lateral rotation to 15, right lateral flexion to 15 and left lateral flexion to 15. Affording the Veteran the benefit of the doubt, the Board finds that the Veteran’s back disability more closely approximates the disability picture contemplated by the 40 percent rating for the period prior to November 5, 2018. To receive a higher evaluation, the evidence must show unfavorable ankylosis of the entire thoracolumbar spine. The evidence does not show, nor does the Veteran contend, that he has had ankylosis of the thoracolumbar spine at any time during this stage of the appeal. Instead, the evidence shows that the Veteran’s back disability produced pain and limited range of motion, including forward flexion limited to 25 degrees. This level of functional impairment is adequately contemplated by the 40 percent rating. Accordingly, a rating of 40 percent, and no higher, for thoracolumbar strain with IVDS for the period prior to November 5, 2018 is warranted. Since November 5, 2018, the Veteran’s back disability has been characterized by forward flexion limited to 10 degrees. The Veteran underwent a VA examination in November 2018. At this time, the Veteran’s range of motion of motion was as follows: forward flexion to 10 degrees, extension to 0, right lateral rotation to 0, left lateral rotation to 0, right lateral flexion to 0 and left lateral flexion to 0. See November 2018 VA Examination, p. 4. The examiner estimated that the Veteran has the same ranges during flares and following repeated use over time. Pain and weakness were noted as causing functional loss. The examiner indicated that there was no guarding or muscle spasm. The Veteran reported experiencing IVDS with episodes of bed rest totalling at least one week but less than two weeks during the past year. However, there is no supporting medical documentation of bed rest prescribed by a physician. The examiner indicated that there was no ankylosis of the spine. The Veteran underwent another examination in January 2019. On range of motion testing, the Veteran’s forward flexion was to 10 degrees, extension to 10, right lateral flexion to 10, left lateral flexion to 10, right lateral rotation to 0 and left lateral rotation to 0. See January 2019 VA Examination, p. 4. The examiner indicated that the Veteran has the same ranges during flares and following repeated use over time. Muscle spasms were noted, and the examiner indicated that they are severe enough to result in an abnormal gait or spinal contour. Additional factors contributing to the Veteran’s disability include swelling, disturbance of locomotion, interference with sitting and interference with standing. There was no ankylosis of the spine but the examiner did note the Veteran’s occasional use of a back brace. The Veteran reported incapacitating episodes of IVDS totalling less than one week over the past year but there is no supporting documentation of physician-prescribed bed rest. VA treatment records from this time show that the Veteran has experienced back pain. See April 2019 CAPRI, pp. 5, 11, 15. For the period starting November 5, 2018, the Board finds that the evidence preponderates against a finding of entitlement to a rating in excess of 40 percent for thoracolumbar strain with IVDS. To receive a higher evaluation, the evidence must show unfavorable ankylosis of the entire thoracolumbar spine. The evidence does not show, nor does the Veteran contend, that he has had ankylosis of the thoracolumbar spine at any time during this stage of the appeal. Instead, the evidence shows that the Veteran’s back disability produced pain and limited range of motion, including forward flexion limited to 10 degrees. This level of functional impairment is adequately contemplated by the 40 percent rating. Accordingly, a rating in excess of 40 percent for thoracolumbar strain with IVDS for the period starting November 5, 2018 is not warranted. REASONS FOR REMAND Increased Rating for Cephalgia/Occipital Neuralgia In the Veteran’s appellate brief, the Veteran stated that he has seen private practitioners for treatment for his headaches. See October 2019 Appellate Brief, p. 2. There are no private treatment records of such treatment in the claims file. Accordingly, the claim is remanded so that the Agency of Original Jurisdiction (AOJ) may obtain any outstanding private treatment records. Moreover, the November 2018 VA examiner indicated that the Veteran does not have prostrating attacks of headache pain. See November 2018 VA Examination, p. 4. However, the Veteran reports experiencing prostrating attacks of headache pain. See October 2019 Appellate Brief, p. 2. Therefore, on remand the AOJ should obtain an opinion as to whether the Veteran experiences prostrating attacks of headache pain and the frequency of any such attacks. The matters are REMANDED for the following action: 1. Provide the Veteran with the appropriate notification and release forms needed to obtain private treatment records related to his headaches. If such efforts are unsuccessful, provide the Veteran with an opportunity to secure and submit the records. 2. Schedule the Veteran for an examination to ascertain the severity of his cephalgia/occipital neuralgia. Any indicated evaluations, studies or tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion, and the examination report must include a discussion of the Veteran’s assertions and documented medical history. (Continued on the next page)   The examiner should elicit detailed information from the Veteran regarding the severity of his headaches, accompanying symptoms, and resulting functional impairment. If the Veteran experiences prostrating attacks of headache pain, the frequency of such attacks should also be noted. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W.V. Walker, Associate 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.