Citation Nr: 20006841 Decision Date: 01/28/20 Archive Date: 01/27/20 DOCKET NO. 19-25 649 DATE: January 28, 2020 ORDER A schedular rating in excess of 20 percent for status post L5 anterior wedge compression fracture is denied. FINDING OF FACT The Veteran’s service-connected status post L5 anterior wedge compression fracture has been manifested by flexion limited to 50 degrees at worst, with no objective evidence of ankylosis, incapacitating episodes, or neurologic abnormalities. CONCLUSION OF LAW The criteria for an initial rating in excess of 20 percent for the Veteran’s status post L5 anterior wedge compression fracture have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code (DC) 5235 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1996 to August 2001. In March 2002, the RO granted service connection for status post L5 anterior wedge compression and assigned a 10 percent rating, effective August 2, 2001. In April 2018, the RO increased the rating to 20 percent, effective January 26, 2018. The Veteran contends that this rating does not adequately reflect the severity of his lumbar spine disability. In the August 2019 VA Form 9, the Veteran indicated that his lumbar spine disability only continued to worsen because his range of motion and flexibility had decreased, he was limited in how long he could sit and stand and lifting objects and running irritated his back. 1. Entitlement to a schedular rating in excess of 20 percent for status post L5 anterior wedge compression fracture Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (DCs 5235 to 5243). Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Under the General Rating Formula, a 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; 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 disability rating is assigned for forward flexion of the thoracolumbar spine at 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 rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Because the evidence shows no intervertebral disc syndrome (IVDS) for the entire initial rating period on appeal, the Board finds that the back disability is appropriately rated under the General Rating Formula rather than the Formula for Rating IVDS Based on Incapacitating Episodes. See July 2019 VA Examination Report (noting that the Veteran does not have IVDS of the thoracolumbar spine). Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). 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 (musculoskeletal system) or § 4.73 (muscle injury); 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). Generally, when an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board finds that a rating in excess of 20 percent is not warranted at any point during the appeal period. To merit the next higher rating of 40 percent under the General Rating Formula, there must either be forward flexion of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. None of the objectively measured ranges of motion noted upon VA examination in 2018 and 2019 meet this standard. Indeed, the most recent VA examination revealed improved range of motion. Moreover, neither VA examiner found evidence of ankylosis. The Veteran has not identified or submitted any post-service medical treatment records and there are no relevant VA treatment records. The Board has considered whether the Veteran’s back disability results in functional loss. It is not disputed that he has limitation of motion of the lumbar spine and chronic back pain. The March 2018 and July 2019 VA examiners noted objective evidence of pain during range of motion testing. Although the point at which pain began during either VA examination is unclear, joint pain alone, including pain throughout the entire range of motion, but without evidence of decreased functioning ability, does not warrant a higher rating. Even considering the Veteran’s reports of pain, the fact remains he has motion in his lumbar spine up to 50 degrees flexion, which is greater than the required finding for a 40 percent rating based on limitation of motion. There is no objective evidence to demonstrate that pain after repeated use or during flare ups results in additional functional limitation to the extent that the symptoms more nearly approximate the disability picture of favorable ankylosis of the thoracolumbar spine or forward flexion to 30 degrees or less. Notably, the July 2019 VA examiner noted pain after repeated use that resulted in flexion to 65 degrees. Therefore, the Board finds that even when considering any functional limitations due to pain, the Veteran’s functional loss does not equate to the criteria required for a 40 percent rating. Based on the above, the Board finds that the back disability has not been manifested by symptomatology or findings more nearly approximating the criteria for an initial rating in excess of 20 percent under DC 5235 at any time during the rating period on appeal. The Board has also considered whether there are any objective neurologic abnormalities associated with the service-connected back disability that warrant a separate rating. The evidence of record does not demonstrate any neurologic manifestations of the back disability. The 2018 and 2019 VA examination reports notes the absence of any neurological symptoms, to include bowel or bladder impairment. (Continued on the next page)   A rating higher than 20 percent is denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Poulson, Senior 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.